Eric Frank Rodriguez v. The State of Texas--Appeal from County Court At Law No 2 of Guadalupe County

MEMORANDUM OPINION

No. 04-05-00838-CR

Eric Frank RODRIGUEZ,

Appellant

v.

The STATE of Texas ,

Appellee

From the County Court at Law No. 2, Guadalupe County, Texas

Trial Court No. CCL-04-2425

Honorable Frank Follis , Judge Presiding

Opinion by: Rebecca Simmons , Justice

Sitting: Catherine Stone , Justice

Karen Angelini , Justice

Rebecca Simmons , Justice

Delivered and Filed: July 19, 2006

AFFIRMED

Eric Frank Rodriguez pled guilty to possession of less than two ounces of marijuana and was placed on deferred adjudication community supervision for twelve months. Rodriguez appeals the trial court's order denying his motion to suppress contending that no reasonable suspicion supported his initial stop. We affirm the trial court's judgment.

In reviewing a trial court's ruling on a motion to suppress, an appellate court gives great deference to the trial judge's determination of historical facts, and reviews de novo the trial court's application of the law to the facts. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). When, as here, the trial court does not file findings of fact, the reviewing court considers the evidence in the light most favorable to the trial court's ruling. Id. at 902. The appellate court assumes the trial court made implicit findings of fact that support its ruling, if the record supports the findings. Id.

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 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. Id. A reasonable-suspicion determination is made by considering the totality of the circumstances. Id. at 492-93. To support a finding of reasonable suspicion, 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. Tex. Dept. of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex. App.-- Dallas 2001, no pet.).

Deputy Trey Kelly testified that he stopped Rodriguez for failing to maintain a single lane of travel. Rodriguez was traveling in the outside lane of a two lane divided highway. Deputy Kelly testified that his attention was drawn to Rodriguez when he was weaving in his lane and both the front and rear tires crossed over the lane marker. Deputy Kelly then activated a video camera which recorded the movements of Rodriguez's vehicle for approximately two miles. Deputy Kelly stated that he did not count how many more times Rodriguez crossed the lane marker; however, the videotape was introduced into evidence.

Rodriguez relies on cases that conclude an officer did not have reasonable suspicion where a defendant was weaving within his own lane of traffic or crossed into another lane on only one or two occasions. See.,e.g., State v. Arriaga, 5 S.W.3d 804, 807 (Tex. App.--San Antonio 1999, pet. ref'd) (holding trial court did not abuse its discretion in granting motion to suppress where officer testified driver drifted within lane two to seven times but never crossed over lane); Hernandez v. State, 983 S.W.2d 867, 868-69 (Tex. App.--Austin 1998, pet. ref'd) (holding trial court abused its discretion in denying motion to suppress where officer observed driver cross into another lane on only one occasion and did not observe any additional weaving); State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.--Waco 1998, pet. ref'd) (holding trial court did not abuse its discretion in granting motion to suppress where officer testified driver crossed white line onto shoulder of road on one or two occasions but observed no other weaving). In this case, Deputy Kelly testified that Rodriguez was weaving in his lane and crossed into the other lane once before he activated the camera. Deputy Kelly stated he did not count how many additional times Rodriguez crossed into the other lane, suggesting that Rodriguez had crossed into the other lane on additional occasions. See Coleman v. State, No. 14-03-00293-CR, 2004 WL 502945, at *3 (Tex. App.--Houston [14th Dist.] 2004, pet. ref'd) (affirming denial of motion to suppress where officers observed driver weaving and crossing into another lane several times) (not designated for publication). Furthermore, the videotape of Rodriguez's driving was introduced into evidence, and the trial court implicitly found that Rodriguez failed to maintain a single lane of traffic in violation of Tex. Trans. Code Ann. 545.060 (Vernon 1999). No videotape of the manner in which the defendant was driving was introduced in any of the above-cited cases relied upon by Rodriguez. Having reviewed the videotape and the officer's testimony, and giving deference to the trial court's determination of historical facts, we conclude that the trial court did not abuse its discretion in denying the motion to suppress.

The trial court's judgment is affirmed.

Rebecca Simmons , Justice

DO NOT PUBLISH