Donald Earl Rolen v. The State of Texas--Appeal from 106th District Court of Gaines County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DONALD EARL ROLEN, )

) No. 08-03-00134-CR

Appellant, )

) Appeal from the

v. )

) 106th District Court

THE STATE OF TEXAS, )

) of Gaines County, Texas

Appellee. )

) (TC# 02-3203)

)

O P I N I O N

Donald Earl Rolen appeals from a third degree felony conviction for the offense of driving a motor vehicle in a public place, while intoxicated, with two or more previous convictions for the same type of offense. Appellant was found guilty by a jury trial and was sentenced to 5 year=s imprisonment. In a single issue on appeal, Appellant contends the trial court abused its discretion in denying his motion to suppress on the grounds that there was no reasonable suspicion to stop his vehicle. We affirm.

On March 30, 2002, State Trooper Kenneth Reed responded to a dispatch call indicating that a possibly intoxicated driver was driving south from Seagraves towards Odessa. Trooper Reed was also given a description of the vehicle. The dispatch report was a result of a disturbance call from Appellant=s ex-wife Michele Rolen=s home where Appellant had attempted to gain entry into the home. Appellant hit the door of the home, but Mrs. Rolen did not let him enter. The fighting between Appellant and Mrs. Rolen frightened their young daughter who in turn called the maternal grandmother. The grandmother overheard the fighting over the telephone and asked the granddaughter if Appellant was intoxicated. The granddaughter stated that he was. The grandmother then called 911. The police responded to the call, but by the time they arrived at Mrs. Rolen=s home, Appellant had left. According to the testimony of the police officer that responded to the call, Mrs. Rolen told him that Appellant was intoxicated and that he may be carrying a hand gun. Mrs. Rolen also stated that Appellant would be traveling south on Highway 385 towards Odessa. During the trial, however, Mrs. Rolen testified that she had never stated that Appellant was intoxicated.

Trooper Reed testified that he witnessed Appellant driving at 50 mph, which was below the posted speed limit, and driving on the shoulder of the road. After confirming that the vehicle was in fact Appellant=s, Trooper Reed turned on his emergency lights to attempt a traffic stop. Although it was possible to pull over immediately, Appellant continued to drive and eventually drove into a county park. Once inside the park grounds, he drove for a considerable distance before finally stopping the vehicle. When Trooper Reed approached Appellant, he noticed Appellant=s eyes were bloodshot, he had slurred speech, and the smell of alcohol was present. Trooper Reed asked Appellant to complete four sobriety tests during which Trooper Reed noticed numerous clues of intoxication; Appellant was then placed under arrest. Once Appellant and Trooper Reed arrived at the Gaines County Sherriff=s Department, Appellant voluntarily took an intoxilizer test. His breath samples measured 0.155 and 0.157 grams of alcohol per 210 liters of breath which were above the legal limit of 0.080 grams.

Appellant filed a pretrial motion to suppress any evidence obtained by the police arguing that there was no reasonable suspicion to stop his vehicle. After a hearing on this issue, the trial court denied the motion. During the trial, Appellant renewed his objection on the suppression issue on the grounds that the State had not shown Appellant violated any law or did anything to require the stop. The trial court overruled the objection but allowed Appellant a running objection. Appellant was found guilty of the offense of driving and operating a motor vehicle in a public place while intoxicated, with two or more previous convictions for the same type of offense and was assessed a punishment of five years= imprisonment. Appellant now timely appeals.

In his sole issue for review, Appellant argues the trial court abused its discretion by denying Appellant=s motion to suppress based on the lack of reasonable suspicion to stop Appellant=s vehicle. Specifically, Appellant argues that the officer did not observe any signs of intoxication and no traffic violation was committed to establish reasonable suspicion to stop his vehicle.

Standard of Review and Applicable Law

We review a trial court=s ruling on a motion to suppress based upon an alleged lack of probable cause or reasonable suspicion using the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Krug v. State, 86 S.W.3d 764, 765 (Tex.App.--El Paso 2002, pet. ref=d). Under this standard, we afford almost total deference to the trial court=s express or implied determination of historical facts and review de novo the court=s application of the law pertaining to search and seizure to those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Carmouche, 10 S.W.3d at 327; Krug, 86 S.W.3d at 765. As there were no explicit findings of historical facts by the trial court, the evidence must be viewed in a light most favorable to the trial court=s ruling. Carmouche, 10 S.W.3d at 327.

A police officer may stop and briefly detain a person for investigative purposes if the officer, in light of his experience, has a 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 totatility 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.

There is no requirement that a particular statute be violated in order to give rise to reasonable suspicion. Gajewski v. State, 944 S.W.2d 450, 452 (Tex.App.--Houston [14th Dist.] 1997, no pet.). If an officer has a reasonable basis for suspecting a person has committed a traffic offense, the officer may legally initiate a traffic stop. McVickers v. State, 874 S.W.2d 662, 664 (Tex.Crim.App. 1993). The State is not required to show a traffic offense was actually committed, but only that the officer reasonably believed a violation was in progress. Valencia v. State, 820 S.W.2d 397, 400 (Tex.App.--Houston [14th Dist.] 1991, pet. ref=d).

In this case, Trooper Reed testified at the suppression hearing that he observed Appellant=s vehicle traveling 50 mph, which was below the posted speed limit. He also noticed the vehicle was driving on the shoulder of the road. While Appellant did not testify at the suppression hearing, during the trial, Appellant testified that he was not driving on the shoulder of the road. On appeal, Appellant reasserts that he was not driving on the shoulder of the road, but he argues that if he had been, veering into the shoulder of the road was reasonable due to the weather conditions on the night in question and therefore, no traffic violation was committed. Appellant contends that because it was raining and there was thunder and lighting on the night in question, he may have not even been aware that he was veering into the shoulder. Tex.Transp.Code Ann. ' 545.058(a)(7)(Vernon 1999) allows for an operator of a vehicle to drive on an improved shoulder in order to avoid a collision. Appellant relies on this section to make the argument that given the weather conditions, it was reasonable for him to veer into the shoulder of the road. We point out however, that Trooper Reed testified that Appellant was driving on the shoulder of the road, not merely veering into it. There is no evidence on the record indicating the need for Appellant to drive on the shoulder of the road to avoid a collision. Furthermore, Appellant cites to no authority to support this argument.

Appellant continues this line of argument and states that even if veering into the shoulder of the road had been a traffic violation, that under Tex.Transp.Code Ann. ' 545.060(a)(1) which allows for the driving within a single lane as nearly as practical, the weather conditions would have negated that practicality. Therefore, there was no traffic violation and no reasonable suspicion to stop Appellant=s vehicle.

Trooper Reed=s testimony does not state that he only relied upon the fact that Appellant was driving 50 mph, and that he was driving on the shoulder of the road to decide to make the stop. Trooper Reed testified that he was also relying on the information provided to him through the dispatch report. We recognize that while an anonymous tip or telephone call may justify the initiation of an investigation, it alone will rarely establish the level of suspicion required to justify a detention. See Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415-16, 110 L. Ed. 2d 301 (1990); Davis v. State, 989 S.W.2d 859, 863 (Tex.App. Austin 1999, pet. ref=d). A police officer must have additional facts before the officer may reasonably conclude that the tip is reliable and an investigatory detention is justified. See Davis, 989 S.W.2d at 863. An officer=s prior knowledge and experience, and his corroboration of the details of the tip, may be considered in giving the anonymous tip the weight it deserves. See id. at 864.

This case doe not present the situation where the officer is relying solely on an informant=s tip. In this case, Trooper Reed testified that in the length of his career as a trooper, he has made approximately 100 stops in which he suspected the driver to be intoxicated. He testified that some of the clues of an intoxicated driver are driving at a slow speed, driving on the shoulder of the road, and taking a long time to come to a stop. Trooper Reed had a description of the vehicle, the direction the vehicle would be traveling, the name of the person who owned the vehicle, which he confirmed when he radioed in the license plate number of the vehicle before making the stop.

Having reviewed the entire record, and examining the totality of circumstances, we believe that Trooper Reed had reasonable suspicion to stop and detain Appellant. We find that the trial court did not abuse its discretion in overruling the pretrial suppression motion. Issue One is overruled.

We affirm the trial court=s judgment.

July 1, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)