No. 10-05-00249-CR
Opinion delivered and filed May 24, 2006. DO NOT PUBLISH.
Appeal fromthe 18th District Court, Johnson County, Texas, Trial Court No. F37645. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
BILL VANCE, Justice.
Appellant John Henry Lenox was convicted of driving while intoxicated. He appeals this conviction. We will affirm the judgment of the trial court.
Background
On January 11, 2004 at approximately 12:40 a.m., DPS Trooper Jim Gillman was traveling on Highway 67 when he noticed a Jeep SUV cross the "fogline," the solid white line at the right-hand side of the road, and strike the "rumble strips." Gillman observed the Jeep cross over the line several times before he activated his onboard video camera and then recorded him cross the line several more times before turning on his overhead lights. The Jeep was "very slow to stop" and again crossed the line once or twice before pulling over to the shoulder. Because the driver, Lenox, showed multiple signs of intoxication, he was placed under arrest for driving while intoxicated ("DWI"). Lenox was indicted for felony DWI on March 4, 2004. He filed a motion to suppress the evidence obtained during the traffic stop. The trial court denied the motion, Lenox pled guilty, and he was sentenced to ten years probation. In his sole issue, he complains that the trial court erred in denying the motion to suppress evidence because Officer Gillman lacked the requisite reasonable suspicion to make the initial traffic stop. Standard of Review
We review a trial court's ruling on a motion to suppress 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). A trial court's denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). The trial court's findings of fact are given "almost total deference," and in the absence of explicit findings, the appellate court assumes the trial court made whatever appropriate implicit findings that are supported by the record. Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 89-90. But when the trial court's rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court's rulings on mixed questions of law and fact. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005). Therefore, although due weight should be given to the inferences drawn by trial judges and law enforcement officers, determinations of matters such as reasonable suspicion and probable cause are reviewed de novo on appeal. Guzman, 955 S.W.2d at 87 (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). Traffic Stop
Applicable Law A traffic stop is a "seizure" within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention is quite brief. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); see United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc); Francis v. State, 922 S.W.2d 176, 178 (Tex.Crim.App. 1996). Therefore, a traffic stop must be reasonable under the United States and Texas Constitutions. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. A police officer is generally justified in briefly detaining an individual on less than probable cause for the purposes of investigating possible criminal behavior where the officer can point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Carmouche, 10 S.W.3d at 328. However, the officer must have reasonable suspicion that the individual is connected to criminal activity. State v. Larue, 28 S.W.3d 549, 553 n. 8 (Tex.Crim.App. 2000). The reasonableness of a traffic stop must be examined in terms of the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 37 (Tex.Crim.App. 1997). When used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person. Id. at 37-8. Generally, what appears to be a violation of the Texas Transportation Code gives rise to reasonable suspicion in support of a valid traffic stop. See Tyler v. State, 161 S.W.3d 745, 750 (Tex.App.-Fort Worth 2005, no pet.). Analysis Lenox relies on Tarvin for the proposition that weaving within a lane of traffic is not a legitimate ground for a traffic stop. Tarvin v. State, 972 S.W.2d 910, 912 (Tex.App.-Waco 1998, pet. ref'd). Although the facts of that case are similar to those in the present case, the cases are distinguishable. In Tarvin, the trial court granted the motion to suppress because the court found, based on the evidence presented at the suppression hearing, that the defendant did not leave his lane of traffic. Id. at 911. In deference to the trial court's findings, this court affirmed the suppression order because there was no evidence that the defendant's driving provided reasonable suspicion of criminal activity. In the present case, during the hearing on the motion to suppress evidence, the trial court heard testimony from Officer Gillman that Lenox crossed over the "fogline" multiple times. Further, a video of Lenox crossing the line was introduced into evidence. The Texas Transportation Code allows an operator of a motor vehicle, in limited circumstances, to "drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely." Tex. Trans. Code Ann. § 545.058(a) (Vernon 1999). However, the record does not show any of the exceptions in Section 545.058(a). See id. The trial court found, based on this evidence, that Lenox violated Section 545.058(a). Id. We agree that Officer Gillman had reasonable suspicion of criminal activity and the traffic stop was legal. The trial court did not abuse its discretion by denying Lenox's motion to suppress evidence. We overrule Lenox's sole issue. Conclusion
Having overruled Lenox's sole issue, we affirm the judgment of the trial court.