No. 13-05-693-CR
Memorandum Opinion Delivered and Filed July 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the County Court at Law of Calhoun County, Texas.
Before Justices HINOJOSA, RODRIGUEZ, and GARZA.
Memorandum Opinion by Justice RODRIGUEZ.
Appellant, Edward Richard Power, was charged with driving while intoxicated. See TEX. PEN. CODE ANN. 49.04 (Vernon 2003). Appellant pled guilty and was assessed punishment of six months' confinement, suspended for one year probation, fifty hours of community service, costs of court, and a $500 fine. The trial court "has certified that this is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and appellant has the right of appeal." See TEX R. APP. P. 25.2(a)(2). By one point of error, appellant challenges the trial court's denial of his motion to suppress. We reverse and remand.
I. Background
On December 17, 2004, DPS Trooper Heath Harkins stopped appellant after he saw appellant's car partially weave once into another lane on a multilane highway. After following appellant for an undetermined length of time, Trooper Harkins pulled appellant over, believing he had committed a minor traffic infraction. During the stop, Trooper Harkins determined that appellant was driving while intoxicated and arrested him. On August 5, 2005, a pretrial hearing on appellant's motion to suppress was held; the trial court denied the motion. II. Motion to Suppress
By his single point of error, appellant contends the trial court erred in denying his motion to suppress the evidence gathered by Trooper Harkins following the traffic stop. A. Standard of Review
We apply a bifurcated standard of review to a trial court's denial of a motion to suppress, giving almost total deference to the trial court's determination of historical facts and reviewing de novo the trial court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002) (en banc). In addition, we must afford almost total deference to a trial court's rulings on mixed questions of law and fact if the resolution of those questions turns on an evaluation of the credibility and demeanor of a witness. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000) (en banc). We review de novo mixed questions of law and fact that do not turn on the credibility and demeanor of a witness. Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)). When, as here, the trial court does not make explicit findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact that support its ruling so long as those findings are supported by the record. Ross, 32 S.W.3d at 855 (citing Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000)). If the trial court's decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at 856 (citing Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990)). B. The Law
When an officer stops a defendant without a warrant and without the defendant's consent, the State has the burden at a suppression hearing of proving the reasonableness of the stop. State v. Cerny, 28 S.W.3d 796, 798 (Tex.App.-Corpus Christi 2000, no pet.). Whether an officer's underlying reasonable suspicion for the stop is justifiable has been examined in terms of the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App. 1997); Dowler v. State, 44 S.W.3d 666, 669 (Tex.App.-Austin 2001, pet. ref'd). Furthermore, the circumstances giving rise to the reasonable suspicion must be objectively supported by specific articulable facts, or the detention is not permissible. Terry v. Ohio, 392 U.S. 1, 29 (1968); Woods, 956 S.W.2d at 38. It is generally accepted that law enforcement officers may lawfully stop a motorist who commits a traffic violation. McVickers v. State, 874 S.W.2d 662, 664 (Tex.Crim.App. 1993), superseded by statute on other grounds as stated in Granados v. State, 85 S.W.3d 217, 227-30 (Tex.Crim.App. 2002); Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992). However, Texas courts have held that an officer who believes a defendant has committed a traffic violation lacks reasonable suspicion to stop the defendant when the facts related to the alleged offense do not support the elements of the offense. See Cerny, 28 S.W.3d at 800-01; Hernandez v. State, 983 S.W.2d 867, 869-72 (Tex.App.-Austin 1998, pet. ref'd); State v. Tarvin, 972 S.W.2d 910, 912 (Tex.App.-Waco 1998, pet. ref'd). As a result, the same courts have held that evidence derived from such a stop is properly suppressed. See Cerny, 28 S.W.3d at 800-01; Hernandez, 983 S.W.2d at 869-72; Tarvin, 972 S.W.2d at 912. C. Analysis
By his sole point of error, appellant contends that the trial court erred in denying his motion to suppress the evidence obtained during his detention by Trooper Harkins because the trooper had no reasonable suspicion to stop him. Specifically, appellant argues that it is clear from Trooper Harkin's testimony that "appellant did not change lanes, and therefore was not required to signal his intention to do so." As a result, appellant contends, there is no evidence in the record that he committed a traffic offense, and therefore no basis for the traffic stop. We agree. At trial, Trooper Harkins testified that he observed appellant weave once, partially, into the outside lane from the inside lane, and back. Trooper Harkins initially testified that appellant's vehicle had traveled "significantly" into the outside lane and back, but under cross-examination he stated that the extent of the weave was "probably the two tires on the right-side lane and then back to the inside." He also testified that he then followed appellant for an undetermined length of time, but witnessed no additional instances of weaving. Nevertheless, based on his observation of the single movement of appellant's two right tires into the adjacent lane with no signal, Trooper Harkins pulled appellant over and cited him for failure to signal intent to change lanes, pursuant to section 545.104(a) of the transportation code. See TEX. TRANSP. CODE ANN. 545.104(a) (Vernon 2003). Section 545.104(a) requires that a motorist use a turn signal "to indicate an intention to turn, change lanes, or start from a parked position." Id. Yet in the case before us, it is clear from the record that appellant never changed lanes; instead, appellant's two right tires only drifted into the outside lane and back. See id. Moreover, there is no evidence in the record that appellant intended to change lanes. See id. Therefore, after examining the stop in light of the totality of the circumstances, Woods, 956 S.W.2d at 35, we conclude that the evidence does not support a finding that Trooper Harkins had articulable facts sufficient to support a reasonable suspicion that appellant violated section 545.104(a) of the transportation code. See Cerny, 28 S.W.3d at 800-01; Hernandez, 983 S.W.2d at 869-72; Tarvin, 972 S.W.2d at 912; see also TEX. TRANSP. CODE ANN. § 545.104(a) (Vernon 2003). As a result, we conclude Trooper Harkins lacked reasonable suspicion to stop appellant on this basis. See Cerny, 28 S.W.3d at 800-01; Hernandez, 983 S.W.2d at 869-72; Tarvin, 972 S.W.2d at 912; see also Terry, 392 U.S. at 29; Woods, 956 S.W.2d at 38. We further conclude that the State failed to carry its burden at the suppression hearing, see Cerny, 28 S.W.3d at 798, and the trial court abused its discretion in denying appellant's motion to suppress. We sustain appellant's sole point of error. III. Conclusion
Accordingly, we reverse the trial court's judgment and remand the cause to that court for further proceedings consistent with this opinion.