No. 04-06-00442-CR
Delivered and Filed: September 19, 2007. DO NOT PUBLISH.
Appeal from the 218th Judicial District Court, Wilson County, Texas, Trial Court No. 06-01-018-CRW, Honorable Fred Shannon, Judge Presiding. AFFIRMED.
Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
PHYLIS J. SPEEDLIN, Justice.
Kevin Jensen pled guilty to possession of less than one gram of methamphetamine and received a suspended sentence of four years community supervision. Jensen reserved the right to appeal the trial court's denial of his motion to suppress the evidence seized during a search of his vehicle. We overrule Jensen's issues on appeal and affirm the trial court's judgment.
Analysis
In his first issue, Jensen asserts the trial court erred in denying his motion to suppress the narcotics seized from his vehicle because the officer did not have reasonable suspicion to conduct the traffic stop. In reviewing a trial court's denial of a motion to suppress, we apply a bifurcated standard of review, affording almost total deference to the trial court's determination of historical facts that the record supports, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor, but reviewing the court's application of the law to the facts de novo. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997). When reviewing a ruling based on a mixed question of law and fact, we review the trial court's application of the law to the facts of the case de novo. Guzman, 955 S.W.2d at 87 (reasonable suspicion review is a mixed question of law and fact). Absent explicit findings of fact by the trial court, the appellate court reviews the evidence in the light most favorable to the trial court's ruling and assumes implicit findings of fact that are supported by the record. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). In order to conduct a lawful temporary detention such as a traffic stop, an officer must have "reasonable suspicion" to believe the individual is violating the law — that is, the officer must have specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude the person is, has been, or soon will be engaged in criminal activity. Ford v. State, 158 S.W.3d 488, 492-93 (Tex.Crim.App. 2005) (court determines whether objective basis for stop exists based on totality of the circumstances). A temporary detention is justified when a person commits a traffic violation in an officer's presence. Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992). We conclude the record before us supports the trial court's finding, made at the conclusion of the suppression hearing, that the officer had reasonable suspicion to stop Jensen for a traffic violation. The officer testified at the hearing that he observed Jensen driving a Ford Mustang which was "swerving," and failing to maintain a single lane of traffic, and that he suspected Jensen was intoxicated. Specifically, the officer stated that both tires of Jensen's vehicle crossed over the solid white line at the shoulder of the road, and then crossed over the dotted line on the other side of his lane, about three times over a distance of approximately 50 yards. He also stated that Jensen seemed "suspicious" because he kept watching the officer in his rearview mirror. The officer stated he stopped Jensen for a traffic violation, i.e., failure to maintain a single lane, and wrote him a warning citation. He stated that Jensen acted "nervous" and was "stuttering" during the stop. When asked to consent to a search of his vehicle, Jensen agreed and the officer found a package of methamphetamine inside a small key holder in the console. Jensen argues that reasonable suspicion for the stop was not established because no evidence was presented at the suppression hearing that his driving was "unsafe;" therefore, the State failed to establish that he committed the traffic violation of failing to maintain a single lane. See Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999) (providing that "[a]n 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"); see also Aviles v. State, 23 S.W.3d 74, 77 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (elements of failure to drive in single marked lane are: (1) a person (2) drives or operates (3) a motor vehicle (4) within a single marked lane, and (5) moves from that lane without first ascertaining that such movement can be made with safety). We recently rejected the same argument by the defendant in Learning v. State, stating that the officer's observation of Learning veering not only within his own lane, but also into an adjacent lane, not once but four times, "warranted a reasonable suspicion that [he] was not moving from one lane to another safely and that he was therefore violating Section 545.060(a)." Learning v. State, 227 S.W.3d 245, 249 (Tex.App.-San Antonio 2007, no pet.) (citing Cook v. State, 63 S.W.3d 924, 928 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) ("even in the absence of other evidence that driver's actions were unsafe, driver's constant weaving into adjacent lane of traffic was `sufficiently unsafe so that the officer was not required to wait until appellant placed himself or others in immediate peril as a result of his erratic driving'")). Moreover, in the context of a suppression hearing, the State is not required to prove that a traffic violation was actually committed, but only that the facts supported a reasonable suspicion that a violation was in progress or had been committed. See Karam v. State, No. 04-04-00316-CR, 2004 WL 2597444, at *2 (Tex.App.-San Antonio Nov. 17, 2004, no pet.); Held v. State, 948 S.W.2d 45, 51 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd) (stating that officer's observation of driver weaving back and forth across lanes is sufficient to give rise to a reasonable suspicion that the driver may be intoxicated, and it is irrelevant that the actual weaving may or may not be criminal in and of itself). There is no requirement that a particular statute be violated in order to give rise to reasonable suspicion. Gajewski v. State, 944 S.W.2d 450, 452 (Tex.App.-Houston [14th Dist.] 1997, no pet.) ("[a]lthough not an inherently illegal act, when the officer observed appellant's car weaving between traffic lanes, reasonable suspicion existed to believe appellant was . . . intoxicated, or that some activity out of the ordinary is [sic] or has occurred, so as to justify the temporary stop. . . ."). Here, the officer's personal observation that both tires of Jensen's vehicle crossed over the lines bordering his lane three times over a span of 50 yards provided objective, articulable facts that supported a reasonable suspicion that a traffic offense was occurring. See Castro v. State, 227 S.W.3d 737, 742 (Tex.Crim.App. 2007) (contrasting Ford, and holding that officer's observation of illegal lane change provided sufficient objective, articulable facts to support finding of reasonable suspicion that driver committed traffic violation by failing to signal his lane change); c.f., Ford, 158 S.W.3d at 493 (officer's testimony provided only a conclusory statement of his own subjective belief that Ford was violating a traffic law by "following too close" without any specific, articulable facts upon which court could assess whether officer's opinion was objectively reasonable). Accordingly, Jensen's first issue is overruled. In his second issue, Jensen asserts the trial court erred in denying his motion to suppress because his consent to the search of his vehicle was not voluntary. At the suppression hearing, the officer testified that when he asked Jensen for consent to search his vehicle after he wrote the citation, Jensen seemed hesitant and nervous and asked what the officer was looking for. The officer replied that he was looking for drugs and weapons coming into and out of the area. He stated that Jensen then consented to the search, which led to the discovery of methamphetamine inside the vehicle. The officer stated that he did not inform Jensen that he had a right to refuse consent to the search. Jensen testified at the hearing that he asked the officer whether he was "telling me that I can't leave here until you search my vehicle?" Jensen stated the officer replied, "Yes," and only then did Jensen consent to the search. The officer was re-examined, and denied telling Jensen that he could not leave until he agreed to the search; the officer also denied that Jensen ever asked whether he could leave, or whether he was not free to leave until he agreed to the search. Jensen now argues on appeal that, based on his testimony, the consent to the search was not voluntary. In determining whether a defendant's consent to search is voluntary, we look at the totality of the circumstances, and an officer's failure to inform the defendant of his right to refuse consent is only one factor to be considered. Carmouche, 10 S.W.3d at 331 (voluntariness of consent to search is question of fact); Johnson v. State, 68 S.W.3d 644, 653 (Tex.Crim.App. 2002). The trial court, as the fact-finder, was free to disbelieve Jensen's contrary testimony, and to believe the officer's testimony that he did not tell Jensen that he could not leave until he consented to the search. Johnson, 68 S.W.3d at 653; Guzman, 955 S.W.2d at 89 (at suppression hearing trial court is sole judge of credibility of the witnesses and weight to be given their testimony). Deferring to the trial judge's assessment of the witnesses' credibility, we conclude the record supports the court's finding that Jensen's consent to the search was voluntary. Carmouche, 10 S.W.3d at 331. Jensen's second issue is overruled. Based on the record, we conclude the trial court did not err in denying Jensen's motion to suppress. The trial court's judgment is affirmed.