Opinion issued May 18, 2017




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-16-00246-CR
                           ———————————
                  JESSE CINCENEROS GARZA, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                    On Appeal from the 10th District Court
                          Galveston County, Texas
                       Trial Court Case No. 13CR3041


                         MEMORANDUM OPINION

      A jury found appellant, Jesse Cinceneros Garza, guilty of the offense of

possession with intent to deliver a controlled substance, namely, cocaine, weighing
more than four grams but less than two hundred grams.1 After appellant pleaded

true to the allegation in an enhancement paragraph that he had previously been

convicted of a felony offense, the jury assessed his punishment at confinement for

seventeen years. In two issues, appellant contends that the trial court erred in

denying his motion to suppress evidence and excusing a seated juror.2

      We affirm.

                                    Background

      Texas Department of Public Safety (“DPS”) Trooper M. Arce testified that on

November 7, 2013, while on patrol around 9:32 p.m., he saw a sport utility vehicle

(“SUV”) make a left turn onto Highway 146 from the “Crazy Horse” club. As Arce

drove behind the SUV, he twice saw the front and back right-side tires “cross[] over”

the “lane divider” into the right lane and then “c[o]me back.” At an intersection, the

SUV made a left turn and pulled into a Jack-in-the-Box restaurant’s parking lot.

Arce activated his patrol car’s emergency equipment and initiated a traffic stop.

Arce explained that he believed the driver of the SUV could be intoxicated because

he saw the SUV “weaving,” it was nighttime, he had previously arrested an




1
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(a), (d) (Vernon
      2010).
2
      See TEX. CODE CRIM. PROC. ANN. arts. 33.011(b), 36.29 (Vernon Supp. 2016).

                                          2
intoxicated driver on the same highway on which the SUV was traveling, and the

SUV appeared to be coming from the Crazy Horse, a club that serves alcohol.

      Trooper Arce further testified that when he approached the SUV, he smelled

an “odor of burnt marijuana coming from the car.” After appellant exited the SUV,

he consented to a search of it and acknowledged that he had been weaving while

driving. During his search of the SUV, Arce found, “in between the [driver’s side]

front seat and the center console,” a bag containing twenty-eight “smaller half-gram”

baggies of a “white powdery substance.” When Arce asked appellant about the

baggies, he responded, “I don’t know what that is, but it looks like cocaine to me.”

(Internal quotations omitted.) Arce conducted a field test of the “white powdery

substance,” and it tested positive for cocaine.

      Trooper Arce also explained that, based on his training and experience as a

law enforcement officer, twenty-eight half-gram baggies of cocaine is not

“indicative of personal use.” And he recovered from appellant’s SUV a large

amount of cocaine. Arce did note that appellant denied that the cocaine was his.

      Brian Nacu, a forensic scientist previously employed by the DPS crime lab in

Houston, testified that he performed a controlled substance analysis in this case.

Nacu tested eight of the twenty-eight baggies found in appellant’s SUV and

determined that each baggie contained cocaine, weighing a total of 4.27 grams.




                                          3
                             Suppression of Evidence

      In his first issue, appellant argues that the trial court erred in denying his

motion to suppress evidence because Trooper Arce did not have reasonable

suspicion to stop him for failing to maintain a single lane. See TEX. TRANSP. CODE

ANN. § 545.060(a) (Vernon 2011) (“An operator on a roadway divided into two or

more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely

within a single lane; and (2) may not move from the lane unless that movement can

be made safely.”).

      We review a trial court’s denial of a motion to suppress evidence under a

bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim.

App. 2013). We review the trial court’s factual findings for an abuse of discretion

and the trial court’s application of the law to the facts de novo. Id. We generally

consider only the evidence adduced at the suppression hearing unless the parties

consensually re-litigate the issue at trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex.

Crim. App. 1996). At a suppression hearing, the trial court is the sole and exclusive

trier of fact and judge of the witnesses’ credibility, and it may choose to believe or

disbelieve all or any part of the witnesses’ testimony. Maxwell v. State, 73 S.W.3d

278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000). When, as here, a trial court does not make explicit findings of fact, we

review the evidence in a light most favorable to the trial court’s ruling. Walter v.


                                          4
State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). We give almost total deference

to a trial court’s implied findings, especially those based on an evaluation of witness

credibility or demeanor. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.

2010). We will sustain the trial court’s ruling if it is reasonably supported by the

record and is correct on any theory of law applicable to the case. Id. at 447–48.

      Prior to trial, appellant moved to suppress “any and all evidence which relates

to [his] arrest,” specifically, the cocaine that Trooper Arce found in appellant’s SUV.

The trial court denied appellant’s motion, stating, “[o]n these facts given . . . both

from Officer Vega and from Trooper Arce, I believe that [the State] has

established . . . specific or articulable facts that would lead a person to conclude that

there might be an issue of intoxication.”

      At the pre-trial hearing on appellant’s motion, Trooper Arce testified that on

November 7, 2013, while on patrol at 9:32 p.m., he saw appellant’s SUV leave the

Crazy Horse club and turn onto Highway 146. While following behind appellant’s

SUV, he twice saw its right-side front and rear tires “cross over into the right lane”

and then return “back” to the lane in which appellant was driving. When appellant

then made a left turn at an intersection and pulled into the parking lot of a

Jack-in-the-Box restaurant, Arce initiated a traffic stop. Arce explained that he

believed that appellant was intoxicated because of the time of night, he saw appellant




                                            5
“coming from [the] Crazy Horse,” a club that Arce knew served alcohol, and he saw

appellant’s SUV “swerv[e]” twice.

      On cross-examination, Trooper Arce noted that appellant’s car turned onto

Highway 146 from the street next to the Crazy Horse, rather than directly from the

Crazy Horse parking lot. However, Arce also explained that “from the distance”

where his patrol car was located, “it looked like [appellant had] pulled out of [the]

Crazy Horse.” Arce also noted that as appellant drove his car on Highway 146, no

other cars were traveling in the lane next to him and appellant did not put “anybody

in danger” when he swerved his car.

      A traffic stop by a law enforcement officer “amounts to a sufficient intrusion

on an individual’s privacy to implicate the Fourth Amendment’s protections.”

Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). However, a law

enforcement officer may stop and briefly detain a person suspected of criminal

activity on less information than is constitutionally required for probable cause to

arrest. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche, 10

S.W.3d at 328. In order to stop or briefly detain an individual, an officer must be

able to articulate something more than an “inchoate and unparticularized suspicion

or ‘hunch.’” Terry, 392 U.S. at 27, 88 S. Ct. at 1883; see also Abney v. State, 394

S.W.3d 542, 548 (Tex. Crim. App. 2013). Instead, an officer must have “reasonable

suspicion” that an individual is violating the law. Ford v. State, 158 S.W.3d 488,


                                         6
492 (Tex. Crim. App. 2005); see also Hamal v. State, 390 S.W.3d 302, 306 (Tex.

Crim. App. 2012) (“To conduct a traffic stop in compliance with the Fourth

Amendment, an officer must have reasonable suspicion.” (internal footnotes

omitted) (internal quotations omitted)). Reasonable suspicion exists if the law

enforcement officer has “specific articulable facts that, when combined with rational

inferences from those facts, would lead him to reasonably suspect that a particular

person has engaged or is (or soon will be) engaging in criminal activity.” Abney,

394 S.W.3d at 548 (internal quotations omitted).

      The reasonable suspicion standard is wholly objective; the subjective intent

of the law enforcement officer conducting the investigation is irrelevant. Hamal,

390 S.W.3d at 306; Ford, 158 S.W.3d at 492. The standard requires only “some

minimal level of objective justification” for the stop. Hamal, 390 S.W.3d at 306

(internal quotations omitted). A reasonable-suspicion determination is made by

considering the totality of the circumstances.      Ford, 158 S.W.3d at 492–93.

Reasonable suspicion may exist even where the conduct of the person detained is

“as consistent with innocent activity as with criminal activity.” York v. State, 342

S.W.3d 528, 536 (Tex. Crim. App. 2011) (internal quotations omitted).

      We note that there is no requirement that a traffic law be violated before a law

enforcement officer has reasonable suspicion to justify a stop of a car. State v.

Alderete, 314 S.W.3d 469, 473 (Tex. App.—El Paso 2010, pet. ref’d); James v.


                                          7
State, 102 S.W.3d 162, 172 (Tex. App.—Fort Worth 2003, pet. ref’d); Cook v. State,

63 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); see also

Nevedomsky v. State, No. 01-12-00105-CR, 2013 WL 655194, at *4 (Tex. App.—

Houston [1st Dist.] Feb. 21, 2013, pet. ref’d) (mem. op., not designated for

publication). Instead, “an officer may be justified in stopping a vehicle based upon

a reasonable suspicion of driving while intoxicated, which is a penal offense,” even

though the driver of the car has not violated a traffic law and has not endangered

other drivers. Alderete, 314 S.W.3d at 473; see also James, 102 S.W.3d at 172;

Jewell v. State, No. 02-13-00418-CR, 2014 WL 3408664, *3 (Tex. App.—Fort

Worth July 10, 2014, no pet.) (mem. op., not designated for publication);

Nevedomsky, 2013 WL 655194, at *4.

      Here, the facts, given the totality of the circumstances and viewed in the light

most favorable to the trial court’s ruling, support the trial court’s conclusion that

Trooper Arce had reasonable suspicion to stop appellant to investigate whether he

was driving while intoxicated. See Leming v. State, 493 S.W.3d 552, 564–65 (Tex.

Crim. App. 2016) (holding law enforcement officer had reasonable suspicion to

investigate potential intoxication where car drifted back and forth within its lane);

Foster v. State, 326 S.W.3d 609, 613–14 (Tex. Crim. App. 2010) (considering time

of day, location, and defendant’s driving in holding law enforcement officer had

reasonable suspicion to believe defendant may have been intoxicated); Curtis v.


                                          8
State, 238 S.W.3d 376, 381 (Tex. Crim. App. 2007) (holding rational inference from

observing car “weaving in and out of his lane several times, over a short distance,

late at night” driver intoxicated and such circumstances justified stop); Gajewski v.

State, 944 S.W.2d 450, 452 (Tex. App.—Houston [14th Dist.] 1997, no pet.)

(“Although not an inherently illegal act, when the officer observed [defendant]’s car

weaving between traffic lanes, reasonable suspicion existed to believe [defendant]

was driving the motor vehicle while intoxicated . . . so as to justify the temporary

stop of defendant’s car.”).

      Notably, any possible innocent explanation for a driver’s unusual driving

behavior does not deprive a law enforcement officer of reasonable suspicion to

investigate the possibility of criminal conduct, such as driving while intoxicated.

See Leming, 493 S.W.3d at 564–65. And, here, Trooper Arce articulated “something

more than an inchoate and unparticularized suspicion or hunch” that gave rise to an

objective justification for the stop of appellant’s car. See Foster, 326 S.W.3d at 614

(internal quotations omitted).

      Accordingly, we hold that the trial court did not err in denying appellant’s

motion to suppress evidence.

      We overrule appellant’s first issue.




                                          9
                                   Disabled Juror

      In his second issue, appellant argues that the trial court erred in excusing juror

number five on the ground that she was disabled and replacing her with an alternate

juror because she “did not lack the necessary power, means, or capacity to serve”

and “[n]othing in the record demonstrates that she was unable to deliberate or

incapable of fulfilling her duties as a juror.” See TEX. CODE CRIM. PROC. ANN. arts.

33.011(b), 36.29 (Vernon Supp. 2016).

      A trial court has the discretion to determine whether a juror has become

disabled and to seat an alternate juror. See TEX. CODE CRIM. PROC. ANN. art. 36.29;

Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012). The code of criminal

procedure provides that alternate jurors shall replace jurors who, before the jury

renders a verdict regarding a defendant’s guilt or innocence, “become or are found

to be unable or disqualified to perform their duties.” TEX. CODE CRIM. PROC. ANN.

art. 33.011(b); see also Sandoval v. State, 409 S.W.3d 259, 279 (Tex. App.—Austin

2013, no pet.) (Texas law requires “when a regular juror becomes unable or

disqualified to perform [her] duties,” she shall be replaced with alternate juror).

“Although the statute does not define ‘unable to perform,’ appellate courts have

concluded that ‘unable’ as used in Article 33.011 is indistinguishable from ‘disabled’

as used in Article 36.29.” Whitehead v. State, 437 S.W.3d 547, 554 (Tex. App.—




                                          10
Texarkana 2014, pet. ref’d); Sandoval, 409 S.W.3d at 279. The Texas Court of

Criminal Appeals,

      has interpreted Article 36.29 to require that a disabled juror suffer from
      a physical illness, mental condition, or emotional state that would
      hinder or inhibit the juror from performing his or her duties as a juror,
      or that the juror was suffering from a condition that inhibited h[er] from
      fully and fairly performing the functions of a juror.

Scales, 380 S.W.3d at 783 (internal quotations omitted).

      We review the trial court’s decision to replace a juror for an abuse of

discretion. Id. at 784; see also Routier v. State, 112 S.W.3d 554, 588 (Tex. Crim.

App. 2003). The trial court is the sole fact-finder and judge of the credibility of the

testifying juror. Scales, 380 S.W.3d at 784. However, the trial court’s decision must

be sufficiently supported by the record, and we may not presume the court made a

proper decision. Id. The trial court’s “ruling must be upheld if it is within the zone

of reasonable disagreement.” Id. Accordingly, we may not substitute our own

judgment for that of the trial court. Instead, we are to assess whether, after viewing

the evidence in the light most favorable to the trial court’s ruling, the ruling was

arbitrary or unreasonable. Id.; Whitehead, 437 S.W.3d at 554. Absent such an abuse

of discretion, no reversible error will be found. Scales, 380 S.W.3d at 784; Routier,

112 S.W.3d at 588.

      At trial, after the jury began deliberating, but prior to it rendering a verdict,

the jury sent the following communication to the trial court:


                                          11
      One juror, #5 . . . discovered from the evidence & video that [appellant]
      is a neighbor (2 blocks from her house).

      She has expressed concern that she is uncomfortable making a decision
      either way guilty or not guilty. Is it possible for her to be excused for
      this reason?

The trial court then held a hearing outside the presence of the jury.

      THE COURT:                 All right. We’re back on the record in the
                                 absence of the jury. [Appellant] is present
                                 and represented by counsel.

                                 I have received a note from the Presiding
                                 Juror with a couple of questions. One
                                 indicates that Juror No. 5 . . . based on the
                                 evidence and video and having started going
                                 over it during deliberations has realized that
                                 [appellant] lives within two blocks of her.
                                 She is very uncomfortable about that and
                                 wanted to know if she could be excused.

                                 I have spoken to her privately. She said she
                                 learned of this or realized this after the
                                 deliberations were underway. She is -- she
                                 will not use the word “afraid,” but she said
                                 she is very anxious about the situation.
                                 Would prefer not to continue to deliberate
                                 and thinks that it would impact her in doing
                                 so.

                                 We do have an alternate. And so, my initial
                                 thought would be to replace [juror number
                                 five] with the alternate . . . and instruct them
                                 that they need to start all over in their
                                 deliberations with the new juror.

                                 Is there any objection from the State with that
                                 process?


                                          12
[The State]:             There is no objection from the State on that
                         process, Judge. I think we would be well in
                         our right to move in that direction looking at
                         Article 33.011 regarding alternate jurors.
                         Under Section B it says that if any of them
                         become or are found to be unable or
                         disqualified to perform their duties, I think
                         based on the note received by the Court that
                         she has described or informed the Court that
                         she is unable to perform her duties. And at
                         this time I think we’re well within our right
                         to move towards the alternate juror. So, the
                         State would request that.

....

[Appellant’s counsel]:   In response to that, your Honor, I would say
                         that just the fact that she’s feeling
                         uncomfortable when she’s deliberating the
                         guilt or innocence of the case, I don’t believe
                         gives a juror -- would substantiate good cause
                         for not performing their duties.

                         There is absolutely no evidence to support
                         that she knows [appellant] or that [appellant]
                         knows her. And for that reason, you know,
                         jury deliberation becomes uncomfortable.
                         Jury deliberation puts people in situations
                         where they second guess themselves. And
                         so, I don’t believe that this rises to the level
                         of, to have a good cause for not performing
                         their duties and that’s why we should replace
                         her. So, I would object to the alternate going
                         in at this point in time.

THE COURT:               Okay. Well, I think the fact that she has
                         asked to be replaced, does say that it makes
                         her very anxious and given that I have
                         confirmed that in my discussion with her, I
                         think that she’s not able to perform her duties.
                                  13
                                 So, I guess we will contact [the alternate
                                 juror]. Have her come back up, and we will
                                 allow [juror number five] to be replaced.

      ....

      THE COURT:                 Okay. It is my ruling that we will replace
                                 [juror      number       five]   with    the
                                 alternate . . . given the jury communication
                                 we have received and my conversation with
                                 [juror number five].

      Appellant asserts that code of criminal procedure article 33.011(b) “simply

does not encompass the facts presented here, namely that [juror number five] was

‘uncomfortable’ or ‘anxious.’” However, even were we to conclude that the trial

court erred in excusing juror number five and replacing her with the alternate juror,

appellant must still show that he was harmed by the trial court’s action. See Ponce

v. State, 68 S.W.3d 718, 721 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)

(such error does not automatically mandate reversal).

      Neither the United States nor the Texas Constitution prescribes the manner in

which juries are selected. Hill v. State, 475 S.W.3d 407, 408 (Tex. App.—Houston

[14th Dist.] 2015, pet. ref’d); Sneed v. State, 209 S.W.3d 782, 788 (Tex. App.—

Texarkana 2006, pet. ref’d). Because any error in dismissing one juror and replacing

her with an alternate juror involves the application of a statutory scheme, it is not of

a constitutional dimension. Hill, 475 S.W.3d at 408; Sneed, 209 S.W.3d at 788; see

also Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998); Bina v. State, No.
                                          14
01-06-00557-CR, 2008 WL 256897, at *3 (Tex. App.—Houston [1st Dist.] Jan. 31,

2008, pet. ref’d) (mem. op., not designated for publication) (“The erroneous

dismissal of a juror is nonconstitutional error governed by Rule of Appellate

Procedure 44.2(b)[.]”).

      Texas    Rule    of   Appellate    Procedure       44.2(b)   provides   that   any

nonconstitutional error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded. TEX. R. APP. P. 44.2(b); Hill, 475 S.W.3d at

408–09. A substantial right is affected when the error had a substantial and injurious

effect or influence in determining the jury’s verdict. See King v. State, 953 S.W.2d

266, 271 (Tex. Crim. App. 1997). It is appellant’s burden to show that his substantial

rights have been affected. See Merritt v. State, 982 S.W.2d 634, 637 (Tex. App.—

Houston [1st Dist.] 1998, pet. ref’d, untimely filed).

      Here, the record does not show any taint from the alternate juror being seated

on the jury panel in juror number five’s place. See Sneed, 209 S.W.3d at 788; Ponce,

68 S.W.3d at 722; Hegar v. State, 11 S.W.3d 290, 295 (Tex. App.—Houston [1st

Dist.] 1999, no pet.). The trial court’s replacement of juror number five with the

alternate juror did not deprive appellant of a twelve-person jury. See Hill, 475

S.W.3d at 409; see also Bina, 2008 WL 256897, at *3. And the alternate juror was

subject to the same jury-selection process, was properly sworn, heard all of the

evidence, and replaced juror number five on the jury panel before the jury rendered


                                          15
a verdict. See TEX. CODE CRIM. PROC. ANN. art. 33.011(b); Hill, 475 S.W.3d at 409;

Sneed, 209 S.W.3d at 788; see also Bina, 2008 WL 256897, at *3. The trial court

also instructed the jury to begin deliberations anew with the alternate juror in place.

See Hill, 475 S.W.3d at 409.

      We note that in an analogous situation, if a trial court were to erroneously

grant the State’s challenge for cause of a prospective juror during voir dire, reversal

would only occur if the defendant showed that he was deprived of a lawfully

constituted jury. See Hill, 475 S.W.3d at 409; Sneed, 209 S.W.3d at 788; see also

Bina, 2008 WL 256897, at *3. Notably, appellant has not argued, and the record

does not show, that he was deprived of a lawfully constituted jury or that any of his

substantial rights were affected. See TEX. R. APP. P. 38.1(i), 44.2(b); Hill, 475

S.W.3d at 409; see also Bina, 2008 WL 256897, at *3. Accordingly, we hold that

any error by the trial court in excusing juror number five on the ground that she was

disabled and replacing her with the alternate juror was harmless. See TEX. R. APP.

P. 44.2(b).

      We overrule appellant’s second issue.




                                          16
                                   Conclusion

      We affirm the judgment of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Huddle, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           17
