                                 Fourth Court of Appeals
                                         San Antonio, Texas
                                    MEMORANDUM OPINION
                                             No. 04-15-00223-CR

                                                  Carlos FAZ,
                                                   Appellant

                                                        v.

                                            The STATE of Texas,
                                                  Appellee

                      From the 227th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2013CR10674
                          Honorable Kevin M. O’Connell, Judge Presiding 1

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: July 6, 2016

AFFIRMED

           After the trial court denied his motion to suppress, Carlos Faz pled guilty to driving while

intoxicated (third offense or more) and true to the enhancement allegation. Pursuant to a plea-

bargain agreement, he was sentenced to ten years of imprisonment. On appeal, he argues (1) the

trial court erred in denying his motion to suppress; and (2) the trial court erred in denying his

motion for new trial because his plea was involuntary. We affirm the judgment of the trial court.


1
 The motion to suppress was referred to Magistrate Judge Andrew Carruthers by the district court. Judge Carruthers’s
ruling then became the decree of the district court. The Honorable Kevin M. O’Connell signed the judgment of
conviction.
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                                           BACKGROUND

       At the suppression hearing, after the State stipulated that a warrantless seizure occurred,

Deputy Eric Sedillo testified. Deputy Sedillo testified that on the night of March 31, 2012, he was

traveling on IH-37 South, a four-lane highway, when he saw a vehicle reduce its speed in the right

lane next to him. He then saw a pickup truck in front of that vehicle drift “half way onto the

improved shoulder.” Deputy Sedillo moved in behind the pickup truck and began following it.

Deputy Sedillo saw the pickup truck drift from the lane onto an improved shoulder again and then

back into the lane. According to Deputy Sedillo, he saw the pickup cross onto the improved

shoulder a total of three times before he turned on his siren.

       Deputy Sedillo testified that when the pickup truck drifted left, it caused another vehicle in

the next lane to also move left to create space between the vehicles. Deputy Sedillo testified that

the reason he stopped the pickup truck was because he observed the pickup truck drift off of the

lane of travel onto the shoulder three separate times.

       A dash cam video taken from the deputy’s patrol car was introduced in evidence and begins

when the deputy’s patrol car moves behind the pickup truck. It shows the pickup truck crossing

the lane’s right line onto the shoulder, drifting back toward the left side of the lane, and then

crossing the right line onto the shoulder again. The video shows a car in the left lane move toward

the left side of the lane when it passes the pickup truck.

       Deputy Sedillo testified that based on his training and experience, the type of driving he

saw indicated that the driver of the pickup truck “wasn’t able to operate the vehicle within the

lane,” causing a danger to other vehicles on the highway. Deputy Sedillo concluded that the driver

of the pickup truck could not operate his vehicle in a safe manner. According to Deputy Sedillo,

the driver of the pickup truck did not appear to be stopping on the shoulder as he did not activate

his turn signal to move over. Nor did the driver activate his brakes to slow down like he was
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attempting to stop the pickup truck. Deputy Sedillo testified that it did not appear that the pickup

driver was deliberately controlling his vehicle. Deputy Sedillo was asked whether, based on his

DWI training and experience, the driving pattern of the driver of the pickup truck was consistent

with a person who was under the influence of alcohol or drugs. Deputy Sedillo replied in the

affirmative, pointing to the “way [the driver] was operating the vehicle and the day and time.”

Deputy Sedillo emphasized that it was “a Saturday night” and almost midnight. Deputy Sedillo

explained that most of his “DWI arrests are on Friday and Saturday nights.” “It’s when a lot of

people are off of work and they’re able to go out and consume alcoholic beverages.” When asked

again what it was that he observed to cause him to stop the driver of the pickup truck, Deputy

Sedillo explained,

       It was the way [the driver] was operating the vehicle. When he first–when I first
       initially saw the vehicle partially on the shoulder, that brought my attention to it.
       That’s why I started following it. At the last point where he — he actually came
       across and started getting really close to the white slotted line with other vehicles,
       and other vehicles catching up, you know, with him drifting back over and coming
       back, I didn’t know whether if it was going to continue, possibly go in the other
       lane. And with the other traffic catching up to us, that’s why I initiated a traffic
       stop.

Deputy Sedillo testified that after he stopped the pickup truck, he informed the driver, Appellant

Faz, that “the reason he was stopped was because he failed to maintain a single lane of travel.”

Deputy Sedillo testified that when he stopped Faz, he “thought that [Faz] might be possibly —

possibly intoxicated.” Deputy Sedillo also testified that he thought that there might be “some kind

of emergency” because it was “not normal driving behavior.”

       The trial court denied Faz’s motion to suppress. After Faz requested that the trial court

make findings of fact and conclusions of law, the trial court orally made the following findings of

fact and conclusions of law:

       The case is here on the defense’s request for findings of facts and conclusions of
       law. These are the Court’s findings of facts and conclusions of law. The officer
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           observed the defendant weaving, on two wheels, crossing into the improved
           shoulder on three different occasions within a very short period of time. Because
           the defendant drifted onto the improved shoulder three times, within approximately
           sixty seconds, the Court finds that the officer had a reasonable suspicion that the
           defendant may have been driving while intoxicated. He, therefore, had a basis in
           law for stopping the defendant in the belief that he may have been intoxicated at
           the time that he was operating the motor vehicle.

                                                 MOTION TO SUPPRESS

           In his first issue, Faz argues that “Deputy Sedillo lacked reasonable suspicion or probable

cause to believe [Faz] was committing a traffic violation or violating the law.” 2 The State responds

that Deputy Sedillo had reasonable suspicion to believe that Fax was driving while intoxicated.

When reviewing a trial court’s ruling on a motion to suppress, we give almost total deference to

the court’s determination of the historical facts that the record supports, especially when those fact

findings are based on an evaluation of the witnesses’ credibility and demeanor. Leming v. State,

No. PD-0072-15, 2016 WL 1458242, at *7 (Tex. Crim. App. Apr. 13, 2016); Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997). We accord the same level of deference to the trial court’s

rulings on mixed questions of law and fact if those decisions turn on the credibility and demeanor

of the witnesses. Guzman, 955 S.W.2d at 89. We review de novo mixed questions of law and fact

that do not turn on witness credibility. Id.

           “Under the Fourth Amendment, a warrantless detention of the person that amounts to less

than a full-blown custodial arrest must be justified by a reasonable suspicion.” Derichsweiler v.

State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). “A police officer has reasonable suspicion to

detain if he has specific, articulable facts that, combined with rational inferences from those facts,

would lead him reasonably to conclude that the person detained is, has been, or soon will be

engaged in criminal activity.” Id. “This standard is an objective one that disregards the actual



2
    We note that Faz challenges only the legality of the initial stop.

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subjective intent of the arresting officer and looks, instead, to whether there was objectively

justifiable basis for the detention.” Id. “It also looks to the totality of the circumstances; those

circumstances may all seem innocent enough in isolation, but if they combine to reasonably

suggest the imminence of criminal conduct, an investigative detention is justified.” Id.

       A person commits the offense of driving while intoxicated if he “is intoxicated while

operating a motor vehicle in a public place.” TEX. PENAL CODE ANN. § 49.04(a) (West Supp.

2015). “Intoxicated” means “not having the normal use of mental or physical faculties by reason

of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of

two or more of those substances, or any other substance into the body.” Id. § 49.01(2)(A) (West

2011). Thus, the question presented in this appeal is whether Deputy Sedillo had an objectively

reasonable basis to suspect Faz, the driver of the pickup truck, to be intoxicated. See Leming, 2016

WL 1458242, at *8-*9.

       In arguing that Deputy Sedillo did not have reasonable suspicion to stop him, Faz relies on

Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007), arguing that Deputy Sedillo “lacked

extensive experience in detecting intoxicated drivers as required by Curtis v. State.” According to

Faz, “because Deputy Sedillo lacked the 23 years of extensive experience detecting intoxicated

drivers the officer in Curtis had as required under that case, there was not reasonable suspicion to

justify the stop based on suspicion of DWI.” Curtis, however, does not stand for the proposition

that an officer must have “extensive experience” before he has reasonable suspicion to justify an

investigative detention.

       In Curtis, 238 S.W.3d at 377, the appellant was stopped at 1:00 a.m. when two state

troopers saw his vehicle weaving in and out of his lane over a short distance. The court of appeals

reversed appellant’s DWI conviction, finding the officers did not have reasonable suspicion to stop

his vehicle. Id. at 377-78. The State’s sole issue on appeal to the Texas Court of Criminal Appeals
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was that the officers had reasonable suspicion to stop appellant’s vehicle and that the court of

appeals applied an improper standard in determining that the officers did not have reasonable

suspicion to stop the vehicle. Id. at 378. The court of criminal appeals noted that the court of

appeals had recognized the proper standard of examining the totality of the circumstances, but had

failed to apply that standard. Id. at 379. The court of criminal appeals pointed out that the phrase

“totality of the circumstances” did not even appear in the court’s discussion regarding reasonable

suspicion. Id. at 380. The court of criminal appeals noted that the court of appeals had failed to

take into account all the factors the officers recounted, including one of the officer’s extensive

experience in detecting intoxicated drivers. Id. Thus, the officer’s extensive experience was but

one factor that should have been considered as part of the “totality of the circumstances.” Id. But,

contrary to Faz’s contention, Curtis does not require an arresting officer have “extensive

experience” before he can have reasonable suspicion to detain a driver for driving while

intoxicated.

       The issue presented in this case does not turn on Officer Sedillo’s experience, but instead

turns on whether under the totality of circumstances, Officer Sedillo had an objectively reasonable

basis to justify the investigative detention of Faz. See Leming, 2016 WL 1458242, at *8 (explaining

that the standard for reasonable suspicion “is an objective one that disregards the actual subjective

intent of the arresting officer and looks, instead, to whether there was an objectively justifiable

basis for the detention”). Recently, in Leming, 2016 WL 1458242, at *8, the court of criminal

appeals reiterated that weaving back and forth under certain circumstances can support reasonable

suspicion to detain a driver. In doing so, the court of criminal appeals did not apply a standard

requiring the arresting officer to have “extensive experience,” but instead looked at all the evidence

presented. Id.



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       In Leming, the court of criminal appeals emphasized that the “United States Supreme Court

has recently acknowledged that observation of ‘dangerous behaviors’ such as weaving back and

forth across the roadway and crossing the center line ‘would justify a traffic stop on suspicion of

drunk driving.’” Id. (quoting Navarette v. California, 134 S. Ct. 1683, 1690-91 (2014)). The court

of criminal appeals noted that while weaving back and forth might “‘be explained by, for example,

a driver responding to an unruly child or other distraction,’ the Supreme Court has ‘consistently

recognized that reasonable suspicion need not rule out the possibility of innocent conduct.’” Id.

(quoting Navarette, 134 S. Ct. at 1691). “It is, after all, only an ‘investigative detention.’” Id. “So

long as the intrusion does not exceed the legitimate scope of such a detention and evolve into the

greater intrusiveness inherent in an arrest-sans-probable-cause, the Fourth Amendment will

tolerate a certain degree of police proaction.” Id. (quoting Derichsweiler, 348 S.W.3d at 916).

       In considering the evidence presented, the court of criminal appeals held reasonable

suspicion justified the investigative detention. Id. The court explained that the arresting officer had

testified that he had been told by dispatch that a driver had seen a white Jeep “swerving from side

to side.” Id. The officer was able to catch up to the driver in question and observed the Jeep “driving

unusually slowly and ‘swerving’ fairly radically—at least within the width of its own dedicated

lane.” Id. The court noted that the dash cam video confirmed the officer’s testimony. Id. The officer

also observed “the Jeep nearly strike the curb.” Id. The court emphasized that “[r]easonable

suspicion depends on the factual and practical considerations of everyday life on which reasonable

and prudent men, not legal technicians, act.” Id. at *9. “Under that commonsense approach, we

can appropriately recognize certain driving behaviors as sound indicia of drunk driving.” Id. The

court held that “on the facts of this case, [the arresting officer] had an objectively reasonable basis

to justify at least a temporary detention to investigate the cause of Appellant’s unusual driving,

even if Appellant’s ‘erratic driving’ (as the trial court aptly characterized it) might ultimately have
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proven to derive from some other, innocent cause.” Id. The court of criminal appeals emphasized

that a determination that reasonable suspicion exists “need not rule out the possibility of innocent

conduct.” Id. (citations omitted). “The possibility of an innocent explanation does not deprive the

[detaining] officer of the capacity to entertain reasonable suspicion of criminal conduct.” Id.

(quoting Woods, 956 S.W.3d at 37) (alteration in original). “Indeed, the principal function of his

investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or

illegal.” Id. (quoting Woods, 956 S.W.2d at 37). The court of criminal appeals stressed that it

“would deem it counterproductive and contrary to common sense to set the reasonable-suspicion

bar for driving while intoxicated so high that law enforcement must hesitate to investigate such

hazardous driving for fear that the stop will later be invalidated.” Id.

       Here, Officer Sedillo testified that he had been a licensed peace officer for seventeen years.

He had been assigned to traffic enforcement for three years. With regard to DWI training, he had

completed the NHTSA Practitioner Course, and before he patrolled alone, he had participated in

field training with another officer for two weeks. Officer Sedillo testified that he saw the pickup

truck driven by Faz drift “half way onto the improved shoulder” and then back into the lane. The

pickup truck then drifted again, crossing the right line onto the shoulder. The pickup truck drifted

back toward the left side of the lane and then crossed back to the right line and onto the shoulder

again. Deputy Sedillo testified that when the pickup truck drifted toward the left, it caused the

vehicle in the left lane to also move left to create space between the vehicles. Deputy Sedillo

testified that in less than a minute, he saw the pickup truck drift off the lane of travel and onto the

shoulder three separate times. The dash camera video confirms this account.

       Deputy Sedillo testified that based on his DWI training and experience, this type of driving

indicated that the driver of the pickup truck “wasn’t able to operate the vehicle within the lane,”

causing a danger to other vehicles on the highway. Deputy Sedillo testified that based on his DWI
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training and experience, the driving pattern of the driver of the pickup truck was consistent with a

person who was under the influence of alcohol or drugs. Deputy Sedillo pointed to the manner in

which the driver “was operating the vehicle and the day and time.” Deputy Sedillo emphasized

that it was “a Saturday night” and almost midnight. He explained that most of his “DWI arrests

are on Friday and Saturday nights” because “a lot of people are off of work and they’re able to go

out and consume alcoholic beverages.” According to Deputy Sedillo, the driving he witnessed was

“not normal driving behavior.” Given Deputy Sedillo’s testimony and the dash camera video, we

cannot find error on the part of the trial court in denying Faz’s motion to suppress. The evidence

supports the trial court’s finding that Deputy Sedillo had reasonable suspicion to conduct an

investigatory detention. See Leming, at *9. We therefore overrule Faz’s first issue.

                                       MOTION FOR NEW TRIAL

          In his second issue, Faz argues that the trial court erred in denying his motion for new trial

because “significant misinformation motivated appellant’s plea,” thus rendering his plea

“involuntary.” Faz argues that he believed he was entering into a plea-bargain agreement “calling

for a cap of 10 years making him eligible for an appeal bond.” Appellant, however, has no right to

appeal this issue. See TEX. R. APP. P. 25.2.

          After Faz’s motion to suppress was denied, he entered into a plea-bargain agreement with

the State. The written plea-bargain agreement states that punishment is to be assessed at ten years.

It does not provide for a cap of ten years. At the plea hearing, the trial court stated the following

to Faz:

          [The written plea-bargain agreement] tells me that your plea bargain is that — you
          have agreed that you have been previously convicted of one felony, which is the
          repeater paragraph, and we’ll get to that in a little bit. Punishment is to be assessed
          at ten years in the Texas Department of Criminal Justice Institutional Division.
          There’s a $1500 fine. The State makes no recommendation on your application for
          community supervision. You’re not eligible for deferred in a DWI case. So the only
          thing you’re eligible for is [] regular probation, which is community supervision.
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        They’re [the State] not going to speak about that. They’re going to be silent on that.
        There’s a two-year driver’s license suspension. Whether or not you receive
        community supervision — that is entirely [up] to me, the Court. Do you understand
        that?

Faz replied, “Yes.” The trial court then asked Faz and his lawyer whether that was their

understanding of the agreement. Both replied in the affirmative. The trial court then asked Faz how

he pled to the offense of driving while intoxicated as a third offense. Faz replied, “Guilty.” The

trial court asked if Faz was pleading guilty because he was guilty. Faz replied, “Yes.” The trial

court confirmed, “For no other reason? Nobody threatened, coerced, or forced you into entering

this plea?” Faz replied, “No, sir.” The trial court then found that the plea of guilty was entered

voluntarily. In its judgment, the trial court assessed punishment at ten years in accordance with the

plea-bargain agreement. The trial court then signed a certification of defendant’s right of appeal,

certifying that this criminal case “is a plea-bargain case, but matters were raised by written motion

filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of

appeal.” Thus, the trial court recognized that Faz had a right to appeal matters raised by written

motion filed and ruled on before trial and not withdrawn or waived. With regard to this issue,

however, Faz is not appealing a pretrial motion raised by written motion filed and ruled on before

trial. Instead, Faz is appealing the trial court’s ruling on his motion for new trial.

        Texas Rule of Appellate Procedure 25.2(a)(2) provides the following:

        In a plea bargain case—that is, a case in which a defendant’s plea was guilty or
        nolo contendere and the punishment did not exceed the punishment recommended
        by the prosecutor and agreed to by the defendant—a defendant may appeal only:

            (A) those matters that were raised by written motion filed and ruled on before
                trial; or

            (B) after getting the trial court’s permission to appeal.

Thus, pursuant to rule 25.2, Faz can only appeal the ruling on his pretrial motions or any other

matter for which the trial court had granted him permission to appeal. TEX. R. APP. P. 25.2(a)(2).
                                                 - 10 -
                                                                                      04-15-00223-CR


However, Faz’s motion for new trial is not a pretrial matter filed and ruled on before trial. Nor did

the trial court give Faz permission to appeal its ruling on Faz’s motion for new trial. Therefore,

pursuant to rule 25.2, Faz does not have the right to appeal the trial court’s ruling on his motion

for new trial.

        In his brief, Faz contends that a “conviction cannot be sustained when a plea of guilty or

no contest has been motivated by significant misinformation conveyed by the defendant’s counsel

or some other officer of the court.” In support of this statement, Faz cites Ex parte Klem, 269

S.W.3d 711 (Tex. App.—Beaumont 2008, pet. ref’d), and Messer v. State, 757 S.W.2d 820, 824

(Tex. App.—Houston [1st Dist.] 1988, pet. ref’d). Ex parte Klem, 269 S.W.3d at 713-14, involves

an applicant filing a petition for a writ of habeas corpus in the trial court and appealing the trial

court’s denial of the application to the appellate court; Ex parte Klem is not a case involving a

direct appeal from the trial court’s judgment. The other case cited by Faz, Messer, 757 S.W.2d at

821, is a case involving a direct appeal from the trial court’s judgment. However, Messer predates

rule 25.2 and is no longer good law. Since Messer, the Texas Court of Criminal Appeals has

explicitly stated that in plea-bargain cases falling under rule 25.2, a defendant may not raise the

issue of voluntariness of his plea on direct appeal. See Griffin v. State, 145 S.W.3d 645, 648-49

(Tex. Crim. App. 2004); Cooper v. State, 45 S.W.3d 77, 82-83 (Tex. Crim. App. 2001). We

therefore overrule Faz’s second issue.

                                           CONCLUSION

        Having overruled both issues on appeal, we affirm the judgment of the trial court.


                                                   Karen Angelini, Justice
Do not publish




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