RANDALL JOE LYSDALE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 11, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00804-CR
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RANDALL JOE LYSDALE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Criminal Court of Law No. 3
Dallas County, Texas
Trial Court Cause No. MB07-60566-C
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MEMORANDUM OPINION
Before Justices Morris, Richter, and Lang-Miers
Opinion By Justice Richter
        A jury convicted Randall Jon Lysdale of driving while intoxicated. In a single issue, he now complains on appeal that the trial court erred in denying his motion to suppress and for a directed verdict, or alternatively, for a new trial. We affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit our recitation of the facts. We issue this memorandum opinion pursuant to Tex. R. App. P. 47.1 because the law to be applied in this case is well settled.
         Because appellant did not move for a directed verdict, we consider only whether the trial court erred in denying the motion to suppress and the motion for new trial. See Tex. R. App. P. 33.1. At trial, Officer Bobby Watkins with the DWI squad of the Dallas Police Department testified that he observed appellant driving in an unsafe manner. Specifically, in heavy to moderate traffic conditions, appellant was weaving within his lane and exceeded the speed limit. The posted speed limit was 60 miles per hour. Officer Watkins determined appellant was speeding by a method called “pacing;” because Officer Watkins was traveling at 75 miles per hour and not catching up to appellant's car, he determined that appellant must also be traveling at 75 miles per hour. A DVD from Officer Watkins's dashboard camera was admitted into evidence without objection. The DVD depicts Officer Watkins following appellant, appellant's erratic driving, and appellant's slow response time between the time the officer activated his lights to initiate the stop and the time appellant exited the freeway.
        Appellant contends the trial court should have granted his motion to suppress because the officer lacked reasonable suspicion to stop him. He claims the State did not establish reasonable suspicion that a traffic violation occurred because there was no evidence of appellant's actual speed or that appellant made an unsafe lane change.
        Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968). An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Reasonable suspicion exists if 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 actually is, has been, or soon will be engaged in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). “Reasonableness” under Fourth Amendment standards is a fact-specific inquiry measured in objective terms by examining the totality of the circumstances. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). We review a motion to suppress evidence by both abuse of discretion and de novo standards. Guzman v. State, 955 S.W.2d 85, 87-91 (Tex. Crim. App. 1997). In evaluating the totality of the circumstances, we give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of law to facts not turning on credibility or demeanor. Id. at 88-89. Because there is no record of the trial court's findings of fact in this case, we review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported by the record. Balentine, 71 S.W.3d at 768.   See Footnote 1 
        The State need not establish the violation of a traffic law with absolute certainty in order to demonstrate reasonable suspicion. See Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Here, Officer Watkins testified he observed appellant driving in an unsafe manner at a speed in excess of the speed limit. Officer Watkins further testified he did not believe appellant's driving was reasonable considering the circumstances of the road. On one occasion, appellant crossed over the line into the next lane about a tire width and came dangerously close to striking another vehicle. Officer Watkins also testified that appellant was weaving in his own lane, and this can also be dangerous. The officer's testimony and the DVD from the dashboard camera were sufficient to establish reasonable suspicion, despite the fact that there was no evidence of the exact rate of speed at which appellant traveled. Deferring to the trial court's determination of historical facts, we conclude the trial court did not err in denying the motion to suppress.
        The standard of review for a trial court's denial of a motion for new trial is whether the trial court abused its discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). Because we have concluded the trial court did not err in its denial of the motion to suppress, we conclude there was no abuse of discretion in its denial of the motion for new trial premised on the suppression issue. We resolve appellant's issue against him and affirm the judgment of the trial court.
                                                          
 
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
080804F.U05
 
 
 
 
 
Footnote 1 The State's references to the record of the suppression hearing are actually references to the trial on the merits. Our record on appeal does not include a record of the suppression hearing or the trial court's findings.