JAMES PATRICK PAWKETT v. THE STATE OF TEXAS--Appeal from County Court of Lavaca County

   NUMBER 13-04-187-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

JAMES PATRICK PAWKETT, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the County Court

of Lavaca County, Texas.

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

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, James Patrick Pawkett, was charged with driving while intoxicated. See Tex. Pen. Code Ann. _ 49.04 (Vernon 2003). The trial court held a pretrial hearing on appellant=s motions to suppress illegally-seized evidence and subsequently denied all motions. Pursuant to a plea agreement, appellant pled guilty, reserving his right to appeal from trial court rulings on pretrial motions. On appeal, appellant contends that the trial court erred in denying his motions to suppress. We affirm the judgment of the trial court.

I. Facts

At the hearing on the motions to suppress, Trooper Southall of the Texas Department of Public Safety testified he observed appellant driving on U.S. 90-A at approximately 11:56 p.m. while in the vicinity of a bar or night club. Southall testified he observed appellant=s vehicle swerve within its own lane, come into contact with the fog line on two separate occasions, and pull onto the shoulder of the highway without being prompted to do so. At that time, Southall engaged his overhead lights and commenced an investigation, whereupon evidence was obtained that eventually led to appellant=s conviction.

Southall testified that based on his training, a vehicle swerving within its lane, coming into contact with the fog line on separate occasions, and pulling over without being ordered to do so may indicate the driver of the vehicle is intoxicated. Further, Southall testified that upon observing appellant=s driving behavior and taking into consideration the time of day and location, he suspected that he was witnessing an intoxicated driver, and that the purpose of the temporary detention was limited to investigate whether the driver was impaired.

II. Motion to Suppress

In his sole issue, appellant contends the trial court erred in denying his motions to suppress evidence obtained during Southall=s investigation. According to appellant, Southall had neither probable cause nor articulable facts sufficient to justify a lawful investigatory stop.

A. Standard of Review

We review a motion to suppress under a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Where, as here, no findings of fact are filed by the trial court, we view the evidence in the light most favorable to the trial court=s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We review de novo questions of law and Amixed questions of law and fact@ that do not turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. The issue before us does not turn on disagreement of facts or evaluation of the credibility of a witness. Therefore, we will utilize a de novo standard of review to evaluate the trial court=s decision on the motions to suppress. See Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89.

B. Probable Cause & Reasonable Suspicion

In order to justify a temporary detention for purposes of investigation, a peace officer must have specific articulable facts which, in light of his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen stopped for further investigation. Terry v. Ohio, 392 U.S. 1, 21-22 (1968); Greer v. State, 544 S.W.2d 125, 127 (Tex. Crim. App. 1976). An inarticulate hunch, suspicion, or the good faith on part of the investigating officer is never sufficient to justify an order for a citizen to stop his vehicle. Glass v. State, 681 S.W.2d 599, 601 (Tex. Crim. App. 1984). However, the Fourth Amendment does not prevent a peace officer, in appropriate circumstances, from stopping and detaining an individual to investigate suspected criminal behavior even though there is no probable cause to make an arrest. Hernandez v. State, 523 S.W.2d 410, 411 (Tex. Crim. App. 1975) (citing Terry, 392 U.S. at 19-21).

There need only be a reasonable suspicion by the officer that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person to the unusual activity, and some indication that the activity is related to a crime. Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). This determination of Areasonable suspicion@ must be examined from the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 9 (1989) (noting that series of lawful conduct taken together may amount to reasonable suspicion); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). Further, assessing the reasonableness of a temporary detention requires an objective standard: whether the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate. Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).

III. Analysis

Appellant contends Southall lacked probable cause to pull him over. We need not make that determination as it was only necessary for Southall to have reasonable suspicion, not probable cause. See Hernandez, 523 S.W.2d at 411 (distinguishing reasonable suspicion from probable cause); see also Hoag, 728 S.W.2d at 380. Although it is questionable whether a single instance of coming into contact with the fog line is sufficient to justify reasonable suspicion of driving while intoxicated, we need not make that determination here. The record reflects there were several circumstances present and available to Southall prior to the investigatory stop sufficient to raise reasonable suspicion, including his experience, appellant=s driving behavior, time of day, and location. Southall is a seventeen-year veteran officer trained to spot and look for peculiar driving behaviors that may indicate an intoxicated person is behind the wheel. Southall testified he observed appellant=s vehicle swerve within its own lane, come into contact with the fog line on two separate occasions, and pull to the shoulder without being prompted to do so. He also testified that the totality of these circumstances led him to make an inference that the driver was probably intoxicated. See Woods, 956 S.W.2d at 38 (discussing Sokolow, 490 U.S. at 9) (holding that wholly innocent conduct taken together may amount to reasonable suspicion)).

Appellant argued that his reason for pulling to the shoulder unprompted was to allow the vehicle behind to pass. Even if we accept as true appellant=s reason, it enters the equation only as one of many factors. We cannot ignore it was approximately 11:56 p.m. or that Southall observed appellant=s vehicle traveling in the vicinity of a bar or night club. These circumstances viewed in total justify Southall=s reasonable suspicion that appellant was operating his vehicle while intoxicated.

In all cases relied on by appellant to show the manner of driving as an insufficient basis of reasonable suspicion, the investigating officer=s reasonable suspicion is based upon a violation of a traffic law. Here, the State=s position is based upon articulable facts that give rise to a reasonable suspicion of driving while intoxicated, not a traffic violation per se. Thus, we conclude the cases relied on by appellant are distinguishable and, accordingly, overrule appellant=s issue on appeal.

IV. Conclusion

We find Southall=s suspicion reasonable under the totality of circumstances. The trial court did not commit reversible error in denying appellant=s motions to suppress evidence. Accordingly, we affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 4th day of August, 2005.