Jerry Sarate v. The State of Texas--Appeal from County Court at Law No 4 of Bexar County

MEMORANDUM OPINION

No. 04-05-00061-CR

Jerry SARATE,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 4, Bexar County, Texas

Trial Court No. 827949

Honorable Sarah Garrahan-Moulder, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Rebecca Simmons, Justice

Delivered and Filed: October 19, 2005

AFFIRMED

Jerry Sarate was charged with driving while intoxicated. Sarate filed a motion to suppress which the trial court denied. On appeal, Sarate asserts the trial court abused its discretion in denying the motion to suppress the evidence when the court ruled Sarate s traffic stop was based on legitimate reasonable suspicion. We overrule Sarate s issue on appeal and affirm the trial court s judgment.

Factual Background

Officer Malcom Guidry testified that some time after 1:00 a.m. on September 7, 2002, he observed several vehicles with their brake lights applied on the west-bound lanes of Interstate Highway 10. The officer stated it appeared that these vehicles were afraid to pass Sarate s vehicle, which was traveling approximately 10 m.p.h. under the speed limit. Officer Guidry pulled directly behind Sarate s vehicle, and observed Sarate weave his vehicle within his own lane from lane-marker to lane-marker. Officer Guidry activated his overhead lights and siren and proceeded to pull Sarate over. Additionally, Officer Guidry stated that based upon the circumstances, a traffic violation had occurred and there was a good possibility Sarate was driving while intoxicated.

Reasonable Suspicion

The only issue is whether the trial court abused its discretion in denying Sarate s motion to suppress and ruling that reasonable suspicion was present to perform the investigatory detention. A police officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion that some activity out of the ordinary is occurring or has occurred. Shafer v. State, 562 S.W.2d 853, 855 (Tex. Crim. App. 1978). Thus, reasonable suspicion exists if the officer has specific articulable facts which, taken together with rational inferences from such facts, reasonably justify the officer to believe that a particular person has engaged or is engaging in a criminal activity. Terry v. Ohio, 392 U.S. 1, 21 (1968). Reasonable suspicion is based on an objective standard that disregards the subjective intent of the officer and looks entirely to whether an objective basis for the detention exists. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Namely, reasonable suspicion is whether the facts available to the officer at the time of the detention warrant a person 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). The determination of whether reasonable suspicion exists is made using a totality of the circumstances test. Garcia, 43 S.W.3d at 530.

When conducting a totality of the circumstances determination, we use a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App 1997). Therefore, when reviewing the trial court s decision to deny the motion to suppress, 1) almost total deference is given to the trial court s findings of fact, especially when those findings involve the evaluation of a witness s credibility or demeanor, and 2) the trial court s application of the law to those facts is reviewed de novo. Id.; State v. Arriaga, 5 S.W.3d 804, 804 (Tex. App. San Antonio 1999, pet. ref d).

Application of Law to the Facts

Sarate argues that there are no objective facts to support a reasonable suspicion because Sarate maintained a safe rate of speed at all times and never violated a traffic law. Sarate s argument refers to Tarvin v. State, 972 S.W.2d 910 (Tex. App. Waco 1998, pet. ref d) and Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005).

In Tarvin, the court held that no reasonable suspicion existed for the detention and there was no evidence of a traffic violation. 972 S.W.2d at 912. In Tarvin the defendant was pulled over for weaving within his own lane. Id. at 910. The trial court found there was no violation of a traffic ordinance. Id. at 911-12. Further, the court noted that the officer never stated that he was conducting an investigative stop or that he suspected the defendant of any criminal activity other than weaving within his own lane. Id. at 912.

Tarvin is distinguishable from the present case. In the case at issue, Officer Guidry stated not only did Sarate s weaving violate a traffic law, but also that other drivers appeared frightened to pass Sarate, who was traveling 10 m.p.h. under the speed limit. Based on his specialized training, Guidry believed there was a good possibility that Sarate may have been drinking and there was reasonable suspicion to stop Sarate for drunk driving. The Tarvin court recognized this distinction when it stated, Although mere weaving in one s own lane of traffic can justify an investigatory stop when that weaving is erratic, unsafe, or tends to indicate intoxication or other criminal activity, there is nothing in the record to show that [the officer] believed any of the above to be the case. 972 S.W.2d at 912.

Sarate also cites Ford to support his claim that the record is void of any facts to support a reasonable suspicion finding. In Ford, the defendant was pulled over for violating a traffic law by following another car too closely. 158 S.W.3d at 491. However, this was the only testimony given by the officer as a circumstance leading up to the traffic stop. Id. The court reasoned that this alone cannot amount to reasonable suspicion because mere opinions are ineffective substitutes for specific, articulable facts in reasonable-suspicion analysis. Id. at 493. Although the State supported its argument with evidence of the officer s training and experience to qualify the officer s judgment in assessing whether Ford was driving his vehicle too closely to another, standing alone training and experience are insufficient to establish reasonable suspicion. Id. at 494. Thus the court in Ford found a complete absence of objective factual support in the record. Id. at 493-94.

Unlike Ford, the record at issue is not completely void of objective facts. Indeed, the record contains more than mere opinions illustrating Officer Guidry s belief that Sarate violated a traffic law and details of Guidry s DWI Task Force training. As previously noted, the record accounts the time of night, the speed and weaving of the vehicle, the other drivers apparent fears, and Officer Guidry s belief that Sarate may be intoxicated.

Sarate insists that the only evidence in the record is Officer Guidry s judgment that Sarate violated Sections 545.060 of the Texas Transportation Code, // which will not suffice as specific articulable facts to establish reasonable suspicion. In Karam v. State, No. 04-04-00316-CR, 2004 WL 2597444 (Tex. App. San Antonio Nov. 17, 2004, no pet. h.) (mem. op.), this court distinguished several similar cases in which drivers were stopped solely on the basis of weaving within a single lane of traffic, which the officers erroneously believed to be a moving violation. Nevertheless, none of the officers in those cases testified that they suspected the drivers were intoxicated. Karam, 2004 WL 2597444 at *2 n.2.

It is irrelevant whether the actual activity one is detained for may or may not be criminal in and of itself. Id. The State is not required to show that a traffic violation was actually committed, but only that the facts supported a reasonable suspicion that a violation was in progress or had been committed. Id., Tex. Dep t of Public Safety v. Fisher, 56 S.W.3d 159, 163 (Tex. App. Dallas 2001, no pet.). Thus a determination that Sarate violated a traffic law is not required in the instant case.

Conclusion

Based on the totality of the circumstances, specific articulable facts were present to establish reasonable suspicion and justify the investigatory detention. The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH