Arthur Garcia Sanchez v. The State of Texas--Appeal from County Court at Law No 12 of Bexar County

MEMORANDUM OPINION
No. 04-02-00624-CR
Arthur Garcia SANCHEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 12, Bexar County, Texas
Trial Court No. 764904
Honorable Michael E. Mery, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 5, 2004

AFFIRMED

Arthur Garcia Sanchez was convicted of driving while intoxicated and sentenced to four months' confinement. His sentence was suspended, and he was placed on probation for one year. Sanchez brings the following issues on appeal: (1) Did the trial court err when, during voir dire, it overruled Sanchez's objections to juror commitment questions? (2) Did the trial court err when it overruled Sanchez's motion to suppress? We affirm the judgment of the trial court.

Juror Commitment Questions

Sanchez has a physical handicap. During voir dire, therefore, the prosecutor asked the venire members:

There may be some evidence in the case, you may hear some evidence about physical disability. And my question is: will anyone here who is sensitive or just thinks that their thinking process lends them to feel the need to be more protective of people with physical disabilities? Is there anyone here who thinks they may have a hard time reaching a verdict based on the fact that there may be evidence of a physical disability?

. . . .

Assuming that you have evidence beyond a reasonable doubt that a person's lost the normal use of their physical faculties, if you're selected as a juror --mental faculties--do you think you would have a bias in favor of or give more benefit to a person who was physically disabled?

Sanchez objected to these questions, and the trial court overruled his objections. On appeal,

Sanchez argues that it was error for the trial court to overrule these objections. Specifically, Sanchez contends that these questions were improper commitment questions under Texas law.

Because Sanchez was not harmed by the trial court's ruling, however, we need not address this issue. A defendant is harmed only if (1) he exhausts all of his peremptory challenges, (2) he requests more challenges, (3) his request is denied, and (4) he identifies an objectionable person seated on the jury on whom he would have exercised a peremptory challenge. Wingo v. State, No. 04-02-00662-CR, 2004 WL 28364, at *4 (Tex. App.--San Antonio Jan. 7, 2004, no pet. h.). Here, the only venire member who responded to the prosecutor's questions did not serve on the jury. (1) Accordingly, Sanchez was not harmed by the trial court's ruling. We overrule this issue on appeal.

Motion to Suppress

At trial, Sanchez moved to suppress all evidence seized as a result of the officer's stop of Sanchez. The trial court denied the motion. On appeal, Sanchez argues that the trial court erred in denying the motion to suppress. Specifically, Sanchez contends that the officer who stopped him did not have reasonable suspicion to do so. A trial court's ruling on a motion to suppress is reviewed under an abuse of discretion standard. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We give almost total deference to the trial court's determination of historical facts and review the application of the law to the facts de novo. Id.

An investigative detention requires an officer to have "a reasonable suspicion to believe that an individual is involved in criminal activity." Balentine, 71 S.W.3d at 768. "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." Id.

Here, Officer Arriaga, the officer who pulled Sanchez over, testified that he observed Sanchez traveling northbound on Interstate 35. Sanchez was "having a hard time maintaining a lane," "coming over the divided line or going over the shoulder and doing this repeatedly," and "driving erratically and having to slow down and slow his vehicle to prevent from hitting other vehicles." Arriaga also testified that in his opinion, Sanchez was "driving in an unsafe manner."

Despite this testimony, Sanchez contends that nothing in the record supports the allegation that his driving was unsafe. Specifically, Sanchez points to Arriaga's testimony that Sanchez used his turn signal to make lane changes and that Sanchez did not cut off any vehicles.

This testimony, however, does not negate Arriaga's other observations. Driving erratically can give rise to reasonable suspicion even if the driver uses his turn signal or does not come close to hitting another car. See Held v. State, 948 S.W.2d 45, 51 (Tex. App.--Houston [14th Dist.] 1997, pet. ref'd) (weaving across several lanes sufficient to give rise to reasonable suspicion that driver intoxicated; irrelevant whether weaving itself is or is not criminal event); see also Raffaelli v. State, 881 S.W.2d 714, 716 (Tex. App.--Texarkana 1994, pet. ref'd) (weaving within lane and speeding after exiting sufficient for reasonable suspicion to stop vehicle). Here, Officer Arriaga testified to sufficient articulable observed facts that, in light of his experience, would warrant a reasonable person to believe that an offense had occurred. Balentine, 71 S.W.3d at 768-69. Accordingly, we hold that the trial court did not abuse its discretion in overruling the motion to suppress.

Sanchez also argues that the trial court violated his constitutional rights in overruling the motion to suppress. See Tex. Const. art. I, 9 ("The people shall be secure in their persons . . . from all unreasonable seizures or searches . . ."). Because Arriaga had reasonable suspicion to stop Sanchez, however, we hold that Sanchez's constitutional rights were not violated.

Conclusion

We overrule Sanchez's issues and affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

1. When the prosecutor asked the panel, "Is there anyone here who thinks they may have a hard time reaching a verdict based on the fact that there may be evidence of a physical disabilty?", venire member Nichols responded, "Not unless that there was an establishment that the disability had something to do with what led others to believe."