Aviles, Jacobo Ivan v. The State of Texas--Appeal from Co Crim Ct at Law No 8 of Harris County

Affirmed and Memorandum Opinion filed October 13, 2005

Affirmedand Memorandum Opinion filed October 13, 2005.

In The

Fourteenth Court of Appeals

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NO.14-04-00958-CR

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JACOBO IVAN AVILES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 8

Harris County, Texas

Trial Court Cause No. 1231367

M E M O R A N D U M O P I N I O N

Appellant, Jacobo Ivan Aviles, was arrested and charged with the misdemeanor offense of driving while intoxicated (DWI). Following a hearing, the trial court denied his motion to suppress evidence and imposed a sentence of a $700 fine and one year imprisonment, probated for two years. Appellant=s sole issue is that the trial court erred in denying his motion to suppress evidence. Specifically, appellant claims that the arresting officer violated his Fourth and Fourteenth Amendment rights by pulling him over without reasonable suspicion. We affirm.

Background

At approximately 2 a.m. on April 16, 2004, Officer William Lindsey of the Houston Police Department=s DWI Task Force saw appellant drive straight through a green light with his turn signal on. Officer Lindsey saw appellant weave in and out of his lane, at which point the officer activated his on-board video camera, made a u-turn, and began to follow appellant. Appellant eventually turned into a driveway and parked behind a restaurant that had closed for the night. At that point, Officer Lindsey followed appellant into the parking lot and approached appellant=s car.

Officer Lindsey testified at the suppression hearing that, upon approaching appellant=s car, he immediately noticed a strong smell of alcohol and that appellant spoke with slow, deliberate speech. The officer then administered field sobriety tests, which appellant failed. Appellant was arrested and charged with DWI.

Reasonable Suspicion

Appellant argues that the trial court erred in denying his motion to suppress because the State failed to show that Aa reasonable suspicion of criminal activity existed@ to detain the appellant. We disagree.

We review a trial court=s denial of a motion to suppress under an abuse of discretion standard. Balantine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In a hearing on a motion to suppress, the trial court is the sole trier of fact and the sole judge of witnesses= credibility and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). [1]

A police officer may stop and briefly detain a citizen for investigative purposes, even if the officer lacks probable cause, if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be taking place. Terry v. Ohio, 392 U.S. 1, 30 (1968); see also Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). In Woods, the Court of Criminal Appeals held that

the reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be, engaged in criminal activity.

956 S.W.3d at 38.

Here, we find that the totality of the circumstances gave Officer Lindsey reasonable suspicion to briefly detain appellant. These circumstances include appellant=s misuse of his turn signal, his erratic driving, pulling into the back of a closed restaurant late at night, and the smell of alcohol that Officer Lindsey perceived when he approached appellant=s car. This court has previously held that weaving across traffic lanes is sufficient to give rise to a reasonable suspicion of intoxication, even if the weaving itself is not criminal. See Held v. State, 948 S.W.2d 45, 51 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d); Townsend v. State, 813 S.W.2d 181, 185 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d); see also James v. State, 102 S.W.3d 162, 172 (Tex. App.CFort Worth 2003, pet. ref=d); McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.CFort Worth 2001, pet. ref=d); Raffaelli v. State, 881 S.W.2d 714, 716 (Tex. App.CTexarkana 1994, pet. ref=d).

Appellant=s reliance on cases stating that failure to maintain a single lane of traffic, without proof of unsafe driving, is not a ticketable offense is misguided. See Bass v. State, 64 S.W.3d 646, 650 (Tex. App.CTexarkana 2001, pet. ref=d); Aviles v. State, 23 S.W.3d 74, 77-78 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); Hernandez v. State, 983 S.W.2d 867, 868 (Tex. App.CAustin 1998, pet ref=d). Officer Lindsey suspected that the criminal activity taking place was drunk driving, not simply unsafe driving. These cases, therefore, do not apply. Weaving in and out of or within lanes of traffic, which is what appellant did according to Officer Lindsey=s testimony at the suppression hearing, is indeed indicative of driving while under the influence of alcohol. Given the totality of the circumstances, we find that the officer=s reasonable suspicion that criminal activity was taking place was supported by articulable facts. See Terry v. Ohio, 392 U.S. at 30; Woods, 956 S.W.2d at 38. Therefore, the trial court did not abuse its discretion in overruling appellant=s motion to suppress. We affirm the judgment of the trial court.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed October 13, 2005.

Panel consists of Chief Justice Hedges, Justice Anderson, and Senior Justice Mirabal.[2]

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] This is not a case in which there are mixed questions of law and fact that do not turn upon the evaluation of credibility and demeanor; therefore, we do not review the trial court=s ruling de novo pursuant to Guzman v. State, as appellant urges us to. 955 S.W.2d 85, 87-88 (Tex. Crim. App. 1997).

[2] Senior Justice Margaret Mirabal sitting by assignment.