RICHARD LEE HEFNER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion filed December 2, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01601-CR
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RICHARD LEE HEFNER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 2
Kaufman County, Texas
Trial Court Cause No. 07CL-0627-2
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OPINION
Before Justices Moseley, Richter, and Francis
Opinion By Justice Moseley
        A jury convicted Richard Lee Hefner of driving while intoxicated with an open container in his possession, a class B misdemeanor. See Tex. Penal Code Ann. § 49.04(a), (c) (Vernon 2003). The trial court sentenced Hefner to ninety days in jail and a $750 fine, then suspended the imposition of sentence and placed him on community supervision. In five issues, Hefner complains of the trial court's denial of his motion to suppress evidence and its charge to the jury. We affirm.
I. MOTION TO SUPPRESS EVIDENCE
A.
 
Background
 
        Hefner filed a motion to suppress evidence. The trial court decided to carry the motion with the trial and rule on it after the presentation of evidence. At trial, Officer Mike Garza testified he observed Hefner driving westbound on an “almost pitch black” stretch of Highway 80 in Kaufman County at about 3:30 or 4:00 a.m. on a Sunday. Garza saw the right tires of Hefner's vehicle cross the fog line onto the shoulder of the road and then the left tires cross the center stripe. Garza activated his video system to record Hefner's driving. Garza stated that after the video was activated, Hefner wove within his lane but did not cross either the fog line or the center stripe. Garza testified he observed two traffic violations: failing to drive in a single lane and driving on an unimproved shoulder. Garza stopped Hefner and observed two open containers of beer. He testified Hefner's eyes were bloodshot, his speech was slurred, and his breath smelled of alcohol. Garza conducted field sobriety tests and arrested Hefner for driving while intoxicated.
        At the close of evidence, the trial court denied Hefner's motion to suppress and made written findings of fact and conclusions of law. Pertinent to the stop issue, the trial court found that Garza observed Hefner's vehicle “swerving in the roadway” and turned on his camera; while the camera was on, Hefner's vehicle was drifting in his lane but not crossing the right or left lines; Garza stopped Hefner's vehicle for his failure to drive in a single lane and driving on the shoulder of the roadway, which occurred before the video was activated; and Garza was concerned for the safety of the driver and the public under the circumstances and decided to stop Hefner's vehicle to examine the driver's condition.
B.
 
Standard of Review and Applicable Law
 
        When reviewing a trial judge's ruling on a motion to suppress, we apply a mixed standard of review-both deferential and de novo. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We give almost total deference to a trial judge's determination of historical facts that the record supports, especially when the fact findings are based on an evaluation of credibility and demeanor. Id. We also afford the same level of deference to a trial judge's ruling on “application of law to fact questions,” or “mixed questions of law and fact,” if the resolution of those questions turns on an evaluation of credibility and demeanor. Id. We review de novo “mixed questions of law and fact” that do not depend upon credibility and demeanor. Id. When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006).
        A detention may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Id. at 492-93. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id. at 492.
        Transportation code section 545.060 concerns “driving on roadway laned for traffic” and provides that an operator on a roadway divided into two or more clearly marked lanes shall drive as nearly as practical entirely within a single lane and may not move from the lane unless that movement can be made safely. See Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999).
C.
 
Discussion
 
        In his first issue, Hefner contends the trial court erred by refusing to suppress evidence obtained as a result of the traffic stop because Officer Garza had no reasonable suspicion that any traffic violations had been or were about to be committed. His first argument concerns the trial court's finding that Garza stopped him for his failure to drive in a single lane pursuant to transportation code section 545.060.
        Hefner argues that a single swerve is not a per se violation of section 545.060(a). He argues the off-camera cross-over involved a single instance of “swerving” and there is no evidence that movement was unsafe. Hefner cites several cases in support of his contention. In State v. Ariaga, 5 S.W.3d 804, 805, 807 (Tex. App.-San Antonio 1999, pet. ref'd), the San Antonio Court of Appeals rejected the State's argument that a driver's drifting toward the divider line and then “jerking back within the lane,” about 1:30 a.m., were facts characterizing an erratic or unsafe driving pattern. Likewise, in State v. Tarvin, 972 S.W.2d 910, 910-11, 912 (Tex. App.-Waco 1998, pet. ref'd), the Waco Court of Appeals rejected the State's argument that a driver's “drifting” to the right-hand side of his lane and “going over” the solid white line on the right two or three times, at 2:00 a.m., was a violation of section 545.060(a). See, e.g., Eichler v. State, 117 S.W.3d 897, 899-900 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (driver crossed left line of lane once into lane of traffic traveling in same direction; held no reasonable suspicion for suspecting commission of traffic offense); Hernandez v. State, 983 S.W.2d 867, 870-71 (Tex. App.-Austin 1998, pet. ref'd) (same).
        Hefner's authorities are distinguishable. In none of those cases was there evidence that the driver's failure to stay in a single marked lane was unsafe. See Eichler, 117 S.W.3d at 901; Ariaga, 5 S.W.3d at 807; Tarvin, 972 S.W.2d at 912. In contrast, here there is evidence Hefner's “swerving” outside his lane was unsafe. Garza testified Hefner crossed the fog line and then the center line. Garza testified this occurred very early in the morning, the roadway was unlit, and that “any kind of debris” could be on the shoulder, posing a hazard of a crash if a person crossed the fog line at night. In addition, Garza subsequently observed Hefner weave within his lane. Such evidence constitutes more than a safe single swerve. See, e.g., Learning v. State, 227 S.W.3d 245, 248-49 (Tex. App.-San Antonio 2007, no pet.) (veering left into adjacent lane four times at night warranted reasonable suspicion that driver was not moving from one lane to another safely, thereby violating section 545.060(a)); Cook v. State, 63 S.W.3d 924, 928-29 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd) (leaving bar “at a considerable rate of speed, pulling into a gas station and leaving” within 10-15 seconds, and driving “all over the roadway” before turning onto marked roadway in addition to “constantly” crossing over center line into adjacent lane justified suspicion driver violated section 545.060(a)).
        Moreover, whether Hefner actually violated section 545.060(a) is not the issue. Rather, as explained in Martinez v. State, 29 S.W.3d 609, 611-12 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd), the issue is whether Garza stopped Hefner based on a reasonable suspicion that a traffic violation had occurred.
        Viewing the evidence in the light most favorable to the trial court's fact finding, we conclude the evidence supports the trial court's finding that officer Garza stopped Hefner for failing to drive in a single lane pursuant to transportation code section 545.060(a). We reject Hefner's argument that there was no evidence his conduct was unsafe. Considering the totality of the circumstances, we conclude the trial court could have determined that Garza had a reasonable suspicion that Hefner was violating section 545.060(a), thereby justifying Garza's traffic stop. See id. We need not address whether Garza had probable cause to stop Hefner based on his observation of a second traffic violation, driving on an improved shoulder pursuant to transportation code section 545.058(a). See Tex. R. App. P. 47.1; Tyler v. State, 161 S.W.3d 745, 750 & n.6 (Tex. App.-Fort Worth 2005, no pet.). Because the trial court did not err by denying Hefner's motion to suppress, we resolve Hefner's first issue against him.
        We need not address Hefner's second and third issues, in which he argues that the trial court erred by refusing to suppress evidence that was obtained as a result of an illegal stop “made without any reasonable suspicion that the offense of driving while intoxicated was being committed” (issue two) or that was obtained as a result of an illegal stop “that was not conducted pursuant to a community care-taking exception” (issue three). See Tex. R. App. P. 47.1; Tyler, 161 S.W.3d at 750 & n.6.
II. JURY INSTRUCTIONS
        Hefner's fourth and fifth issues concern the jury instructions. Hefner's two complaints concern, respectively, the italicized and the underlined language in the jury charge:
 
        You are instructed that under the law no evidence obtained or derived by an officer or other person as a result of an unlawful stop and detention shall be admissible in evidence against such accused. An officer is permitted to make a temporary investigative detention of a motorist if the officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that a person detained actually is, has been, or soon will be engaged in criminal activity.
 
 
 
        Now, bearing in mind if you find from the evidence that on the occasion in question [Hefner] failed to maintain a single lane of traffic and/or drove on unimproved shoulder on Highway 80 or that the officer felt that the defendant's driving was such that the officer was concerned for the safety of the defendant or others, immediately preceding his stop and detention by the officer herein or you have a reasonable doubt thereof, then such stopping of the accused would be illegal and, if you find the facts so to be, or if you have a reasonable doubt thereof, you will disregard this testimony of the officer relative to his stopping the defendant and his conclusion drawn as a result thereof and you will not consider such evidence for any purpose whatsoever.
 
(Emphases added.)
        Hefner's counsel objected to the italicized language on grounds that it should be “define[d] a little more,” stating “exactly what is a violation of the statute,” “exactly what the law says in that respect.” He also objected to the underlined language, arguing the jury should not be able to consider the community care-taking function because certain factors derived from case law were not shown and were not included in the charge, although counsel also seemed to argue that “differences in the evidence” justified submission of this issue to the jury.   See Footnote 1  The trial court overruled these objections.
A.
 
Standard of Review and Applicable Law
 
        We review jury-charge error in a two-step process. First, we must determine whether error actually exists in the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). If error exists, the next step requires us to determine whether sufficient harm was caused by the error to warrant reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). If the charge error was the subject of timely objection, reversal is required if that error was calculated to injure the rights of the defendant, thereby causing some actual harm. Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000). We examine the harm suffered in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of probative evidence, argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.
        “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or the laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). “In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.” Id. See Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005). Although a fact issue about whether evidence was legally obtained may derive “from any source,” and the evidence may be “strong, weak, contradicted, unimpeached, or unbelievable,” the legality of the search or arrest is a question of law, not fact, when essential facts concerning the search or arrest are not in dispute. McRae v. State, 152 S.W.3d 739, 747-48 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (citing Garza v. State, 126 S.W.3d 79, 86 (Tex. Crim. App. 2004)).
B.
 
Tracking the Language of Sections 545.058(a) and 545.060(a)
 
        In his fourth issue, directed to the italicized language from the jury charge quoted above, Hefner contends the trial court erred by failing to track the language of sections 545.060(a) (driving on roadway laned for traffic) and 545.058(a) (driving on improved shoulder), thus incorrectly informing the jury on the elements necessary to constitute violations of those statutes. He specifically argues a proper instruction should have included a statutory definition of “weaving” and its exclusion imposed a greater burden on him and lessened the State's burden of proof.
        Hefner's argument that a proper instruction should have tracked the statutory language is misplaced. The issue was whether Garza had reasonable suspicion to suspect that Hefner had violated a traffic statute, thus justifying the stop, not whether Hefner had in fact violated a statute. See Martinez, 29 S.W.3d at 911-12. The State had the burden to prove reasonable suspicion, not whether there was evidence supporting each element of an offense. We agree with the State that the language of these sections consists of common words, known to the jury, and not requiring definition. See Russell v. State, 665 S.W.2d 771, 780 (Tex. Crim. App. 1983). Moreover, any error in saying “unimproved” instead of “improved” shoulder did not result in harm. We resolve Hefner's fourth issue against him. C.
 
Including the Community Care-Taking Exception
 
        In his fifth issue, directed to the underlined language above, Hefner contends the trial court should not have instructed the jury on the community care-taking exception because no disputed facts raised that issue. We agree with the State that this instruction accrued to Hefner's benefit because had the jury determined the stop was unjustified on those grounds, it would not have considered any evidence of intoxication resulting from the stop and acquitted Hefner. Accordingly, such error was harmless. See Almanza, 686 S.W.2d at 171. We resolve Hefner's fifth issue against him.
III. CONCLUSION
        Having resolved Hefner's five issues against him, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
071601F.U05
 
 
Footnote 1 Hefner's counsel also objected to the bold language, saying the charge should be more specific and should say “improved shoulder.” However, Hefner makes no argument on appeal concerning the trial court's resolution of this objection.