WILLIAM PHILLIPS v. THE STATE OF TEXAS--Appeal from County Court at Law No 2 of Victoria County

NUMBER 13-01-070-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

  WILLIAM PHILLIPS, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the County Court at Law No. 2

of Victoria County, Texas.

__________________________________________________________________

O P I N I O N

Before Justices Dorsey, Ya ez, and Rodriguez

Opinion by Justice Rodriguez

Appellant, William Phillips (Phillips), was charged with the misdemeanor offense of driving while intoxicated (DWI). The trial court denied his motion to suppress evidence,[1] and Phillips subsequently entered a plea of guilty to DWI, as part of a plea agreement. The trial court assessed punishment at 180 days confinement in the Victoria County Jail, probated for one year, and a $500.00 fine. By two points of error, Phillips contends the trial court erred in denying his motion to suppress. We reverse and remand.

I. FACTS

At approximately 2:40 a.m., Trooper Leo Casas noticed a black Ford pick-up truck ahead of him traveling in the same direction. The truck was traveling north in the left lane.[2] Trooper Casas followed the truck and observed it cross the yellow center line approximately two times and then cross over into the right hand lane approximately two times. Believing that a traffic violation occurred, Trooper Casas turned on his emergency lights and pulled the truck over.

II. STANDARD OF REVIEW

The controlling issue in this case is whether Trooper Casas was justified in initially stopping Phillips. In a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. See State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). We afford almost total deference to a trial court=s findings of facts that the record supports, especially when the findings are based on an evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Martinez v. State, 29 S.W.3d 609, 611 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d). We review de novo mixed questions of law and fact not falling within this category. Guzman, 955 S.W.2d at 89; Martinez, 29 S.W.3d at 611. Because the issue in this case does not involve a disagreement about the facts or credibility of the witness, but rather whether the officer had either probable cause or a reasonable suspicion to stop Phillips, we review the trial court=s ruling de novo. See State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman, 955 S.W.2d at 89.

III. ANALYSIS

In his first point of error, Phillips contends the trial court erred in denying his motion to suppress because there was no evidence of a violation of law that would justify Trooper Casas=s initial stop. To justify the stop, however, it is not necessary to show that Phillips actually violated a traffic regulation, only that Trooper Casas had a reasonable suspicion that a violation was in progress. See Powell v. State, 5 S.W.3d 369, 376-77 (Tex. App.BTexarkana 1999, pet. ref=d).

A. Reasonable Suspicion

A police officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks evidence rising to the level of probable cause. See Terry v. Ohio, 392 U.S. 1, 30 (1968); Davis v. State, 947 S.W.2d 240, 242-43 (Tex. Crim. App. 1997). The reasonableness of a stop turns on the totality of the circumstances present in each case. Davis v. State, 794 S.W.2d 123, 125 (Tex. App.BAustin 1990, pet. ref=d). However, if an actual violation of law is observed, there is probable cause for the traffic stop, and law enforcement officials are free to enforce the laws and detain a person for that violation. See McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993).

When a police 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. Russell v. State, 717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986); Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.BAustin 1998, pet. ref=d).

B. State=s Burden

Section 544.060 requires an operator on a roadway divided into two or more clearly marked lanes for traffic to (1) drive as nearly as practical entirely within a single lane, and (2) not move from the lane unless that movement can by made safely. Tex. Transp. Code Ann. ' 545.060 (a) (Vernon 1999).

Trooper Casas testified that he stopped Phillips because he failed to drive in a single lane. During the suppression hearing, to bolster Trooper Casas=s testimony that he had reasonable suspicion to justify the stop, the State asked Trooper Casas to view the videotape and to point out where he believed the offenses occurred. The following testimony occurred:

A: Just for the record, the offense did occur also [sic] before the video was started, before it started recording.

Q: Thank you for clarifying.

[the video starts playing]

A: Right as he got passed the light he hit the center line.

[videotape continues]

A: And right here he clearly goes over into the right lane. I activated my lights and he pulled over off into the parking lot.

Q: Why did you activate your lights, Trooper Casas?

A: The vehicle in front of me had committed a traffic violation.

After reviewing the videotape and Trooper Casas=s testimony, we find the State failed to demonstrate articulable facts sufficient to support a reasonable suspicion. See Davis, 947 S.W.2d at 242-43. Trooper Casas did not testify, nor did the video show, that Phillips was driving in an unsafe manner, or that he crossed into another lane in an unsafe manner.[3] See Bass v. State, 64 S.W.3d 646, 651 (Tex. App.BTexarkana 2001, no pet.); Aviles v. State, 23 S.W.3d 74, 79 (Tex. App.BHouston [14th Dist.] 2000, pet. ref=d); Hernandez, 983 S.W.2d at 871. Furthermore, there is no evidence that the weaving was erratic, unsafe, or tended to indicate any other criminal activity. See State v. Cerny, 28 S.W.3d 796, 800-01 (Tex. App.BCorpus Christi 2000, no pet.); State v. Arriaga, 5 S.W.3d 804, 807 (Tex. App.BSan Antonio 1999, pet. ref=d); State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.BWaco 1998, pet. ref=d).

Although Phillips left his lane in four instances, there is nothing in the record to indicate that he did so in an unsafe manner. See Tex. Transp. Code Ann. ' 545.060(a). Without more, the record is devoid of any evidence to support a reasonable basis for believing that section 545.060(a) of the transportation code was violated. See Aviles, 23 S.W.3d at 79. Based on the totality of circumstances, we find Trooper Casas did not have a reasonable suspicion supported by articulable facts that criminal activity may be afoot to justify stopping Phillips. See Terry, 392 U.S. at 30; Davis, 947 S.W.2d at 242-43. Therefore, the State failed to meet its burden of proving the reasonableness of the stop. Russell, 717 S.W.2d at 9-10. Phillips=s first point of error is sustained.[4]

Accordingly, we reverse the trial court=s order denying Phillips=s motion to suppress and remand the case for further proceedings consistent with this opinion.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 16th day of May, 2002.

[1]Phillips filed a motion to suppress evidence obtained after he was pulled over by Trooper Casas.

[2]The road in question is a public highway which has two northbound lanes and two southbound lanes separated by a center lane.

[3]We note that the video showed Phillips pass a vehicle. As he passed the vehicle, Phillips=s left tires broached the yellow center turn lane. Although this could be considered unsafe, we conclude it appeared Phillips was making more room for the other vehicle as he passed it. If anything, this action appeared more safe than if he had stayed in his lane, closer to the vehicle, as he passed it.

[4]Because of our disposition of Phillips=s first point of error, we need not address the remaining point of error. See Tex. R. App. P. 47.1.