Jack G. Ferrell, Jr. v. The State of Texas--Appeal from County Court at Law No 4 of Bexar County

MEMORANDUM OPINION

No. 04- 05-00652-CR

Jack G. FERRELL, JR.,

Appellant
v.
THE STATE OF TEXAS,

Appellee
From County Court of Law No. 4, Bexar County, Texas

Trial Court No. 883618

Honorable Sarah Garrahan-Moulder , Judge Presiding

Opinion by: Sandee Bryan Marion , Justice

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: October 11, 2006

AFFIRMED

A jury found defendant, Jack G. Ferrell, Jr., guilty of driving while intoxicated and the trial court assessed punishment at 180 days' confinement, probated for one year. On appeal, defendant contends the trial court erred in denying his motion to suppress. Specifically, defendant asserts the officer did not have reasonable suspicion or probable cause to make the traffic stop. We affirm.

BACKGROUND

On April 21, 2004, Officer John Saenz was patrolling the downtown highways of San Antonio during an annual city celebration. Officer Saenz testified that around 10:49 p.m., he observed defendant "going from side to side in one lane of travel very quickly" and "driving on top of the [dividing] lines." Officer Saenz then triggered his overhead lights to initiate the traffic stop. After defendant stopped, Officer Saenz proceeded to conduct several field sobriety tests. After failing the tests, defendant was arrested for driving while intoxicated.

STANDARD OF REVIEW AND APPLICABLE LAW

When reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo the court's application of the law of search and seizure to those facts. Ross, 32 S.W.3d at 856.

A police officer may stop and briefly detain a person for investigative purposes if the officer, in light of his experience, has reasonable suspicions supported by articulable facts that criminal activity was afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230-31 (1983); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). A temporary detention is justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Woods, 956 S.W.2d at 38-9. A reasonable suspicion means more than a mere hunch or suspicion. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App.1997). A detention is not permissible unless the circumstances objectively support a reasonable suspicion of criminal activity. Id.

Defendant argues Officer Saenz lacked sufficient facts giving rise to a suspicion to stop him. Defendant claims that Officer Saenz stopped him for weaving within his lane and driving on top of the lane divider twice, which is not a crime or offense.

In order to temporarily detain an individual for investigation, an officer need only articulate specific facts that, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminally related activity. Held v. State, 948 S.W.2d 45, 51 (Tex. App.--Houston [14th Dist.] 1997, pet. ref'd). It is irrelevant that the actual activity may or may not be criminal in and of itself. Id. However, "there must exist articulable facts used by the officer to create some reasonable inference of criminal conduct." Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992); see also Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991).

Here, Officer Saenz testified that defendant was "drifting abruptly, quickly from side to side." When asked if this was normal, he replied: "No, not as far as quickly. There are drivers at times that do drift very slowly but that is, in my opinion, normal driving." He also testified that defendant "failed to drive in a single lane of travel by driving on top of the white lines that divide the lanes of travel." When defendant failed to maintain a single lane a second time, Officer Saenz decided to initiate the traffic stop. Officer Saenz testified that in his training and experience, defendant's driving was "common driving for people that are possibly intoxicated." He further testified that because there were other vehicles traveling on the road he "felt it was [his] duty to stop [defendant] to check him to avoid an accident from occurring at a later date...."

This testimony is sufficient to support reasonable suspicion to stop defendant. See Davis v. State, 923 S.W.2d 781, 784, 788 (Tex. App.--Beaumont 1996) (holding stop proper where officer testified defendant weaved "line to line" many times and suspected he was intoxicated), rev'd on other grounds, 947 S.W.2d 240 (Tex. Crim. App. 1997); State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.--Waco 1998, pet. ref'd) (noting that "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..."). CONCLUSION

Based on a review of the totality of the circumstances, the trial court did not err in denying defendant's motion to suppress. Therefore, we overrule defendant's issue on appeal and affirm the judgment of the trial court.

Sandee Bryan Marion, Justice

DO NOT PUBLISH