Ralph Joseph Karam v. The State of Texas--Appeal from County Court at Law No 11 of Bexar County

MEMORANDUM OPINION

No. 04-04-00316-CR

Ralph Joseph KARAM,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From County Court at Law No.11, Bexar County, Texas

Trial Court No. 842052

Honorable JoAnn S. De Hoyos, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis Speedlin, Justice

Delivered and Filed: November 17, 2004

AFFIRMED

A jury found defendant, Ralph Joseph Karam, guilty of driving while intoxicated and the trial court assessed punishment at 180 days' confinement, probated for one year. On appeal, defendant contends the trial court erred in denying his motion to suppress. Specifically, defendant asserts that driving too slow and outside of his traffic lane was not unsafe, and therefore, the trial court erred in finding there was both reasonable suspicion for the initial stop and detention and probable cause for the arrest. We overrule defendant's issues on appeal and affirm the trial court's judgment.

BACKGROUND

Officer James Phelan testified that on February 3, 2003 at approximately 12:30 a.m., he observed defendant driving very slow, almost "at walking speed." Due to recent car burglaries in the area, Officer Phelan decided to follow the car and run the license plate number. When he pulled behind defendant's vehicle, defendant was traveling between eight and ten miles an hour. The street on which defendant was driving is a residential street with no sidewalks or divider lines and the speed limit is thirty miles per hour. While following defendant, Officer Phelan observed the vehicle swerve all the way to the left side of the road, into the oncoming lane. When defendant was within a few feet of the street's edge, he corrected his course and came back to the right, all within a span of two blocks. Officer Phelan testified that as the car drifted to the left at such a slow speed, he thought alcohol may have been involved. After defendant stopped at a stop sign, he began to turn. Officer Phelan then triggered his overhead lights to initiate the traffic stop. When defendant eventually pulled over, Officer Phelan approached defendant in his car. Because he smelled a "strong odor of intoxicants," Officer Phelan proceeded to conduct several field sobriety tests. After failing the tests, defendant was arrested for driving while intoxicated.

STANDARD OF REVIEW AND APPLICABLE LAW

When reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo the court's application of the law of search and seizure to those facts. Ross, 32 S.W.3d at 856.

A police officer may stop and briefly detain a person for investigative purposes if the officer, in light of his experience, has reasonable suspicions supported by articulable facts that criminal activity was afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527 (1983); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). A temporary detention is 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 is, has been, or soon will be engaged in criminal activity. Woods, 956 S.W.2d at 38. A reasonable suspicion means more than a mere hunch or suspicion. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App.1997). A detention is not permissible unless the circumstances objectively support a reasonable suspicion of criminal activity. Id.

Defendant argues Officer Phelan did not have sufficient facts giving rise to a reasonable suspicion to stop him and conduct the field sobriety tests. He claims that Officer Phelan stopped him for driving too slow and failing to maintain a single lane of traffic. Defendant asserts that driving slow is not a traffic violation because he was not impeding the normal traffic and that crossing the center line is only a violation if it is done unsafely or dangerously. (1) Defendant concludes that because Officer Phelan did not have reasonable suspicion to stop him, the officer also lacked probable cause for the arrest. Defendant's argument fails to recognize that we are to consider the totality of the circumstances and take into account all of defendant's acts when determining whether Officer Phelan had reasonable suspicion to stop him. (2)

In order to temporarily detain an individual for investigation, an officer need only articulate specific facts that, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminally related activity. Held v. State, 948 S.W.2d 45, 51 (Tex. App.--Houston [14th Dist.] 1997, pet. ref'd). It is irrelevant that the actual activity may or may not be criminal in and of itself. Id. However, "there must exist articulable facts used by the officer to create some reasonable inference of criminal conduct." Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992); see also Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991). In other words, the detaining officer must point to something that would lead a reasonable person to believe the detainee was engaged in a criminal act. See Viveros, 828 S.W.2d at 4.

In this case, Officer Phelan testified defendant was driving at a walking pace on a street zoned for thirty miles per hour and had crossed into the oncoming lane. In addition, he testified that within a span of two blocks, defendant drifted all the way to the left side of the roadway, coming within a few feet of the left edge of the roadway, and then jerked back to the right before reaching a stop sign. It is at this point Officer Phelan reasonably believed a traffic violation was in progress and decided to initiate a stop. When Officer Phelan turned on his overhead lights, defendant failed to stop. Instead, he turned right and continued to drive at about five miles per hour all the way to his apartment complex, and then to the second set of buildings in the complex before he finally stopped. Officer Phelan testified that based on his experience, a person's failure to stop immediately, coupled with driving all the way to their parking spot, is behavior consistent with someone who is intoxicated and whose intent is to make it home to wait and "[see] what happens." Officer Phelan testified that when defendant finally stopped, he approached defendant who said "give me a break, I'm home." This testimony is sufficient to support reasonable suspicion to stop defendant. See McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.--Fort Worth 2001, pet. rec'd.) (officer's testimony that appellant was driving at slow speed in left lane and had crossed over center line raised sufficient facts to justify stop based on reasonable suspicion that appellant was intoxicated); Markey v. State, 996 S.W.2d 226, 228 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (driving sixteen miles per hour, weaving, and long pause to make a turn provided reasonable suspicion). Finally, Officer Whelan's testimony that he smelled a strong odor of alcohol upon approaching and talking to defendant and that defendant failed the field sobriety tests is sufficient to demonstrate the officer had probable cause to arrest defendant.

CONCLUSION

Based on a review of the totality of the circumstances, the trial court did not err in denying defendant's motion to suppress. Therefore, we overrule defendant's issues on appeal and affirm the judgment of the trial court.

Sandee Bryan Marion, Justice

DO NOT PUBLISH

1. "An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical within a single lane; and (2) may not move from the lane unless that movement can be made safely." Tex. Trans. Code 545.060(a)(Vernon 1999); "An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law..." Tex. Trans. Code 545.363(a).

2. The cases cited by defendant are factually distinguishable. State v. Tarvin, 972 S.W.2d 910, 911-12 (Tex. App.--Waco 1998, pet. ref'd) and Cerny v. State, 28 S.W.3d 796, 801 (Tex. App.--Corpus Christi 2000, no pet.), involved drivers who were stopped solely on the basis of drifting or weaving within a single lane of traffic, an action the officers erroneously believed to be a moving violation. The officers did not testify that they suspected the drivers were intoxicated. In Hernandez v. State, the court held that crossing a lane marker by eighteen to twenty -four inches on a single occasion did not provide a reasonable suspicion that the driver was intoxicated. Hernandez v. State, 983 S.W.2d 867, 870 (Tex. App.--Austin 1998, pet. ref'd).