FRED DEWAINE CAREY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed February 23, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01300-CR
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FRED DEWAINE CAREY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Criminal Court No. 4
Dallas County, Texas
Trial Court Cause No. MB06-38704-E
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OPINION
Before Justices Moseley, Maloney, and Thomas   See Footnote 1 
Opinion By Justice Maloney   See Footnote 2 
        The trial court found Fred Dewaine Carey guilty of driving while intoxicated on his plea of nolo contendere and assessed fifteen days confinement in the Dallas County Jail and a $500 fine. In a single issue, appellant argues the trial court incorrectly denied his written motion to suppress evidence “from a warrantless search.” We affirm the trial court's judgment.
THE EVIDENCE
        The only testimony at the suppression hearing came from Kirk LeCroy, an Irving Police Sergeant. LeCroy was stopped at a red light on the westbound service road of John Carpenter Freeway (the freeway) when he saw appellant's pick-up truck make a wide right turn off Loop 12 onto the westbound service road. After turning, appellant moved to the far left lane without signaling a lane change. When appellant turned on to the freeway, LeCroy followed appellant's truck. LeCroy continued to follow appellant until appellant exited at O'Connor Road. Appellant traveled under the freeway and crossed both service roads, weaving through the traffic. As his truck weaved to the left, appellant “struck” the white line twice. When appellant struck the white line, LeCroy activated his red lights and stopped appellant.   See Footnote 3 
        On cross-examination, appellant traced LeCroy's route from the sighting of the pick-up truck to the stop and questioned him if the distance was 3.1 miles. LeCroy stated that he thought the distance was less than three miles but, “accepted” appellant's calculation. LeCroy explained that appellant touched the white line twice and crossed over it the third time.
        Appellant then questioned LeCroy about appellant's speed. LeCroy answered that he “clocked” appellant's speed. LeCroy admitted that he had testified appellant touched the white line twice, but the video   See Footnote 4  showed that appellant's truck crossed over the line a third time.
SHOULD THE TRIAL COURT HAVE DENIED
THE MOTION TO SUPPRESS EVIDENCE
 
 
        In a single issue, appellant challenges LeCroy's authority to temporarily detain him under the United States and the Texas Constitutions. Specifically, he argues that because the arresting officer's “investigative detention” was not within a reasonable time or distance after the alleged traffic violation, the trial court should have suppressed the evidence.
        The State responds that appellant inadequately briefed his only issue. The State contends appellant's brief contains no analysis on how his cited authorities applied to the facts of his case. Additionally, the State argues that appellant did not identify what evidence appellant wished to suppress in either his motion to suppress or at the suppression hearing. Finally, the State argues, should we find that appellant properly briefed his issue, the trial court had sufficient evidence to believe LeCroy had reasonable suspicion to stop appellant for traffic violations.
1. Standard of Review
 
        We review de novo a trial court's ruling on a motion to suppress that does not turn on evaluations of credibility and demeanor. See Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer to a trial court's determination of the historical facts that the record supports, particularly on credibility and demeanor. See Amador; 221 S.W.3d at 673; see also Leach v. State, 35 S.W.3d 232, 234-35 (Tex. App.-Austin 2000, no pet.). We uphold a trial court's evidentiary ruling if any valid theory exists to support that ruling, regardless of whether the State argued that theory at trial or on appeal. See Graham v. State, 893 S.W.2d 4,7 (Tex. App.-Dallas 1994, no pet.).
2. Applicable Law
 
        We analyze the legality of a traffic stop for Fourth Amendment   See Footnote 5  purposes to determine whether the officer's act was justified at its inception and the search or seizure was reasonably related to the circumstances that justified the stop in the first place. Terry v. Ohio, 392 U.S. 1, 19-20 (1968). The Texas Constitution gives no greater protection than the United States Constitution. See Johnson v. State, 912 S.W.2d 227, 235-236 (Tex. Crim. App. 1995).
         Police officers may lawfully stop any motorist who commits a traffic violation. See Walter v. State, 28 S.W.3d 538, 543 (Tex. Crim. App. 2000). A traffic stop is an investigative detention. See Berkemer v. McCarty, 468 U.S. 420, 439 (1984). Changing lanes without signaling violates the Texas Transportation Code. Tex. Transp. Code Ann. § 545.104 (Vernon 1999). An officer may make a warrantless arrest for any offense that is committed in the officer's view or presence. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). This includes traffic offenses. See State v. West, 20 S.W.3d 867, 871 (Tex. App.-Dallas 2000, pet. ref'd).
        We must decide whether the record supports the trial judge's findings. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). If the record supports the trial court's findings, we only determine if the trial court properly applied the law to the facts. Self v. State, 709 S.W.2d 662, 665 (Tex. Crim. App. 1986). When a trial court denies a motion to suppress without explanation, probable cause rests entirely on the witnesses' demeanor and credibility, a decision to which we give almost total deference. See State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).
4. Application of Facts to Law
        Assuming, without deciding, that appellant sufficiently briefed his point of error, we defer to the trial court's decision on the facts and examine whether the trial court properly applied the law to the facts. Appellant relies on State v. Dixon to support his argument that the officer's delay in stopping appellant rendered the stop illegal. See State v. Dixon, 206 S.W.3d 587 (Tex. Crim. App. 2006). Appellant misplaces his reliance. Dixon did not turn on the officer's delay between “the amount of time or the distance between the traffic offense and the traffic stop.” See Dixon, 206 S.W.3d at 590. Rather, the trial court did not believe that Dixon committed a traffic offense. Id. at 590-91. Here, the trial court stated that it had seen the videotape and observed appellant's erratic driving.
        LeCroy observed appellant's erratic driving as well his traffic violations. And, in the trial court's view, the videotape confirmed that LeCroy had sufficient, objective reasons to stop appellant.
        We resolve appellant's sole issue against him and affirm the trial court's judgment.
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
 
Footnote 1 The Honorable Linda Thomas, Chief Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 3 Although the record shows that the officer used “struck” to describe appellant's acts, we presume that he meant appellant's vehicle crossed the white line.
Footnote 4 The trial court admitted the police patrol videotape without objection.
Footnote 5 Although appellant raises separate complaints regarding the United States and Texas Constitutions, our analysis remains the same under either constitution. Consequently, because appellant addresses the federal and state cases together, we do the same.