CARLUS DEMARCUS GATSON, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM as modified; Opinion issued April 30, 2010

S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01635-CR
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CARLUS DEMARCUS GATSON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F02-56915-JH
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OPINION
Before Justices Moseley, Bridges, and Fillmore
Opinion By Justice Bridges
        Carlus Demarcus Gatson appeals his possession of a controlled substance conviction. Appellant was on deferred adjudication probation for a possession of controlled substance offense when he was charged with a subsequent offense of driving while intoxicated. The State filed a motion to adjudicate appellant's guilt. The trial court denied appellant's motion to suppress, revoked appellant's deferred adjudication probation, found appellant guilty of possession of a controlled substance, sentenced appellant to two years' confinement in state jail, suspended his sentence, and placed him on community supervision for two years. In a single point of error, appellant argues the trial court erred in denying his motion to suppress. In a cross-point, the State points out that the reporter's record shows appellant pled “not true” to the motion to adjudicate, but the trial court's judgment shows appellant pled “true.” The State asks that the judgment be reformed to show appellant pled “not true.” As reformed, we affirm the trial court's judgment.
        At the hearing on appellant's motion to suppress, Dallas County Sheriff's Deputy Danny Andrews testified he was on patrol at approximately 1:16 a.m. on April 5, 2008 when he saw appellant's car traveling south on 635. Andrews saw appellant's vehicle “move from the right center lane over to the left center lane crossing the white stripe lane dividers both front and rear tires on the driver's side moving both tires over into the left center lane,” and then the vehicle moved quickly back into the right center lane. Appellant's tires moved approximately a foot into the adjacent lane before moving back into the right center lane. Andrews saw appellant do this three times and observed he was having a difficult time staying in the lane of traffic. Andrews considered this dangerous because appellant had the potential to strike other vehicles or go off the road, possibly hitting vehicles, businesses, or homes. Andrews began looking for a safe location to conduct a traffic stop and waited to see which way appellant would go as he approached the point where 635, I-20, and 175 split. Appellant continued west onto I-20, and Andrews initiated a traffic stop after following appellant for approximately two miles. Appellant stopped his vehicle, and Andrews approached and asked to see his driver's license. Andrews noticed appellant's eyes were “very red and bloodshot,” and there was a strong smell of alcohol coming from appellant's vehicle.
        Andrews testified he is certified to administer field sobriety tests. Andrews first administered the horizontal gaze nystagmus test, and appellant exhibited six of six clues. Appellant exhibited three out of eight clues on the walk and turn test. Andrews then arrested appellant for driving while intoxicated and took him to the mobile intoxilyzer. Appellant was read his statutory warnings, and he provided a breath sample. The test revealed an alcohol concentration of .124. The trial court denied appellant's motion to suppress and granted the State's motion to revoke probation. This appeal followed.         In a single point of error, appellant argues the trial court erred in denying his motion to suppress. Specifically, appellant argues Andrews lacked probable cause to initiate the traffic stop. We review a trial court's denial of a motion to suppress for abuse of discretion. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). There is an abuse of discretion when the ruling was so clearly wrong as to be outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). We afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when the trial court's fact findings are based upon an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). We afford the same amount of deference to the trial court's rulings on mixed questions of law and fact, if the resolution of those questions turns on an evaluation of credibility and demeanor. Carmouche, 10 S.W.3d at 332; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo the trial court's application of law to those facts in the determination of reasonable suspicion and probable cause. Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89. In determining whether a trial court's decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence that may have been introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).
        A police officer has the authority to stop and temporarily detain a driver who has violated a traffic law. Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982). Under the Texas Transportation Code, the operator of a vehicle (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. Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999). Appellant contends the evidence does not show he failed to keep his vehicle in a single lane in an “unsafe” manner, and no violation of section 545.060 occurred. Therefore, appellant argues, there was no traffic violation to support the initial traffic stop, and all evidence thereafter obtained should have been suppressed.
        On the contrary, Andrews testified that appellant's inability to stay in a single lane was dangerous because appellant had the potential to strike other vehicles or go off the road, possibly hitting vehicles, businesses, or homes. The trial court reviewed the videotape showing appellant's failure to stay in a single lane and noted the close proximity of an eighteen-wheeler to appellant's vehicle made appellant's weaving between lanes “an unsafe maneuver.” Under these circumstances, we conclude the evidence shows appellant's failure to stay in a single lane was unsafe and violated section 545.060. See id. Therefore, Andrews had the authority to stop and temporarily detain appellant. See Armitage, 637 S.W.2d at 939. Under these circumstances, we conclude the trial court did not abuse its discretion in overruling appellant's motion to suppress. See Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89. We overrule appellant's sole point of error.
        In its cross-point, the State points out that the reporter's record shows appellant pled “not true” to the motion to adjudicate, but the trial court's judgment shows appellant pled “true.” The State asks that the judgment be reformed to show appellant pled “not true.” We resolve the State's cross-point in its favor and reform the judgment to reflect appellant pled “not true” to the motion to adjudicate. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd) (court has authority to reform judgment when it has information necessary to do so).
        As reformed, we affirm the trial court's judgment.


                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE

Do Not Publish
Tex. R. App. P. 47
081635F.U05