                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


  THE STATE OF TEXAS,                            §
                                                                 No. 08-16-00087-CR
                      Appellant,                 §
                                                                    Appeal from the
  v.                                             §
                                                           County Criminal Court at Law #2
  JORGE ARTURO ESPINOZA,                         §
                                                               of El Paso County, Texas
                      Appellee.                  §
                                                                 (TC# 20150C10006)
                                                 §


                                         OPINION

       The State of Texas, Appellant, charged Jorge Arturo Espinoza, Appellee, by information

with one count of driving while intoxicated (DWI) on October 27, 2015. Espinoza filed a motion

to suppress his detention by law enforcement for lack of probable cause, in addition to a separate

motion to suppress the blood test. The trial court granted Espinoza’s motion to suppress his

detention. In four issues, the State now appeals the trial court’s order. We reverse.

                                   FACTUAL SUMMARY

       During the early morning hours of September 13, 2015, Officer Willem Wilkinson, then

assigned to the DWI Task Force of the El Paso Police Department, was on patrol on Mesa Street

in El Paso, Texas. Also present in the vehicle was an assistant district attorney who was present
in the patrol vehicle as part of a ride-along in fulfillment of her official duties. The following

events were recorded on Officer Wilkinson’s vehicle’s on-board video recorder.

       At approximately 2 a.m., Officer Wilkinson observed a vehicle make a U-turn from the

northbound lanes into the southbound lanes of Mesa Street in El Paso, Texas, entering the middle

lane of that street. As the vehicle executed a U-turn, it entered the right lane of travel and then

moved back into the middle lane without signaling. Officer Wilkinson began to follow the

vehicle. The vehicle continued to travel in the center of the middle lane for approximately forty-

five seconds. During this time, the on-board video shows the vehicle’s right tires touched the

right-hand lines of the center lane four separate times, however, the tires did not cross over the

lane markers. At 2:10:59 a.m., the vehicle’s right tires crossed completely over the right-hand

lines of the center lane without any turn signals, and then the vehicle drifted back over into the

center lane.

       Some few seconds later, Officer Wilkinson activated his emergency lights and initiated a

traffic stop of the vehicle. Once Officer Wilkinson activated his emergency lights, the on-board

video shows the vehicle immediately swerving to the left and then pulling over to the right. The

vehicle stopped in a parking lot.     Officer Wilkinson then initiated contact with the driver,

Espinoza.

       Officer Wilkinson noted that Espinoza’s face was flushed, and he had a blank stare.

Officer Wilkinson asked Espinoza where he was going, Espinoza responded he was going home

from a bar. Officer Wilkinson detected an odor of alcohol emanating from Espinoza’s person.

Espinoza admitted drinking that night.         Officer Wilkinson asked Espinoza to perform

standardized field sobriety tests (SFSTs), to which Espinoza agreed.           Officer Wilkinson


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determined, after Espinoza’s performance on the SFSTs, the signs he observed while speaking to

Espinoza, and the odor of alcohol emanating from Espinoza’s person, he believed Espinoza to be

intoxicated and he arrested Espinoza for DWI.

       At the suppression hearing, Officer Wilkinson testified he observed two separate traffic

violations: first, a failure on Espinoza’s part to signal when his vehicle came out of the U-turn and

drifted from the middle lane to the right lane, and then back into the middle lane; and second, when

Espinoza’s vehicle’s right-hand tires crossed over the line just before Officer Wilkinson initiated

the traffic stop. He further testified that a traffic violation occurs when a driver fails to remain

within a single lane of traffic, regardless of whether the action was safe or unsafe.

       The State also asked Officer Wilkinson whether a vehicle that drifts from lane to lane is a

sign that the driver is intoxicated. He testified that in his experience, a vehicle that drifts from

lane to lane is a “cue . . . that—over the years, it’s not normal behavior for someone to kind of

straddle the lane and come back. Especially the time of day, the area, it’s a cue, yes.” When

asked what he meant by “the area,” Officer Wilkinson replied that there were many establishments

in the area where Espinoza was driving that served alcohol until 2 a.m., and that it was a well-

known area for people to go consume alcoholic beverages. When asked what constitutes a traffic

offense, Officer Wilkinson testified that “straddling” occurs when a vehicle drives on the lane

markers that divide street lanes. Even so, Officer Wilkinson admitted that in the time between

the U-turn and the point when he activated his vehicle’s emergency lights, Espinoza’s vehicle did

not “straddle” the lane lines in a way that met the definition of straddling he was trained on, and

thus Espinoza did not commit a traffic violation during that time. He also stated that Espinoza’s

initial straddling was not unsafe, and agreed with defense counsel’s definition of straddling as that


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occurring when a vehicle’s tires pass over the lane lines.

       After the suppression hearing, the trial court granted Espinoza’s motion to suppress the

traffic stop. In its findings of fact and conclusions of law, the trial court recognized that Officer

Wilkinson had observed Espinoza’s vehicle drift from lane to lane twice and fail to signal a lane

change, but the trial judge was not convinced that Espinoza’s vehicle’s tires actually crossed over

the line markers on the street, and that because the traffic in the area was light, Espinoza’s actions

were not unsafe. Thus, the trial court concluded that no violation of TEX.TRANSP.CODE ANN.

§ 545.060 occurred, that Officer Wilkinson did not have reasonable suspicion to stop Espinoza,

and that the stop was therefore unlawful. The trial court did not make a specific finding or

conclusion regarding the trustworthiness of Officer Wilkinson’s testimony.

                                           DISCUSSION

       In its four issues, the State contends that the trial court abused its discretion when it granted

Espinoza’s motion to suppress. It argues that: (1) the trial court erred in finding that Officer

Wilkinson did not have reasonable suspicion to stop Espinoza where it focused on his subjective

intent instead of applying the objective standard; (2) that the trial court abused its discretion in

failing to find that an officer in Officer Wilkinson’s position would have been justified in stopping

Espinoza for violating TEX.TRANSP.CODE ANN. § 545.060; (3) that the trial court abused its

discretion when it did not find that Officer Wilkinson had sufficient reasonable suspicion to stop

Espinoza for violating TEX.TRANSP.CODE ANN. § 545.104 when indisputable on-board video

evidence supported Officer Wilkinson’s testimony; and (4) that the trial court abused its discretion

by failing to find that Officer Wilkinson had reasonable suspicion to suspect that Espinoza was

committing DWI.


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                                        Standard of Review

       We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Crain

v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010). That discretion is tested under a bifurcated

standard of review as articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). See

Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Krug v. State, 86 S.W.3d 764, 765

(Tex.App.--El Paso 2002, pet. ref'd).     Under that bifurcated standard, we give almost total

deference to the trial court’s resolution of questions of historical fact, especially when those

determinations are based on assessments of credibility and demeanor. Arguellez v. State, 409

S.W.3d 657, 662 (Tex.Crim.App. 2013); Derichsweiler v. State, 348 S.W.3d 906, 913

(Tex.Crim.App. 2011). Likewise, we give the same deference to trial court rulings that apply the

law to the facts if those determinations turn on credibility or demeanor. Arguellez, 409 S.W.3d

at 662. We review de novo mixed questions of law and fact that do not turn on credibility and

demeanor. Id.

       However, mixed questions of law and fact, that do not turn on the evaluation of credibility

and demeanor, are reviewed de novo. Johnson v. State, 414 S.W.3d 184, 192 (Tex.Crim.App.

2013). Further, we conduct a de novo review as to pure questions of law. State v. Woodard, 341

S.W.3d 404, 410 (Tex.Crim.App. 2011). When the trial court makes explicit fact-findings, as the

case here, we determine whether the evidence, when viewed in the light most favorable to the

ruling, supports them.    State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.Crim.App. 2006).

Regardless of whether the motion was granted or denied, the prevailing party is entitled to “the

strongest legitimate view of the evidence and all reasonable inferences that may be drawn from

that evidence.”   State v. García-Cantú, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008).            An


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appellate court may uphold the trial court’s ruling if it is supported by the record and correct under

any theory of law applicable to the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App.

2007).

         In cases involving videotape evidence, we apply the deferential standard articulated in

Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997), “to a trial court’s determination of

historical facts when that determination is based on a videotape recording admitted into evidence

at a suppression hearing.” Tucker v. State, 369 S.W.3d 179, 184-85 (Tex.Crim.App. 2012)

(quoting Montanez v. State, 195 S.W.3d 101, 109 (Tex.Crim.App. 2006)). Thus, a court of

appeals should view the video in the light most favorable to the trial court’s ruling, but if the video

evidence does not support the trial court’s conclusion, then the court of appeals should reverse.

Id. An appellate court should review de novo a trial court’s application of the law of search and

seizure. Id.

         If the relevant facts of the case are uncontested and there are no witness credibility

disputes—as is the scenario here—we apply the de novo standard of review.                See State v.

Gendron, No. 08-13-00119-CR, 2015 WL 632215, at *6 (Tex.App.--El Paso Feb. 11, 2015, pet

ref’d)(not designated for publication)(citing State v. Alderete, 314 S.W.3d 469, 472 (Tex.App.--El

Paso 2010, pet. ref’d)(rejecting a de novo standard of review where the trial court found the

testifying officer to lack credibility); see also State v. Vasquez, No. 08-13-00079-CR, 2015 WL

1316494, at *3–4 (Tex.App.--El Paso Mar. 18, 2015, pet. ref’d)(not designated for

publication)(applying abuse of discretion standard when the trial court found the arresting officer’s

testimony to lack credibility). We also “may review de novo ‘indisputable video evidence’

contained in a videotape;” however, we “must defer to the trial judge’s factual finding on whether


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a witness actually saw what was depicted on a videotape.” State v. Duran, 396 S.W.3d 563, 570-

71 (Tex.Crim.App. 2013).

                                             The Stop

       Espinoza contends the traffic stop was conducted without reasonable suspicion of criminal

wrongdoing in violation of his Fourth Amendment rights. He asserts the traffic stop was illegal

because the on-board video did not demonstrate a traffic violation as alleged by Officer

Wilkinson—which the Supreme Court concluded in Terry v. Ohio violates the Fourth

Amendment’s prohibition against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1,

20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). A “reasonable-suspicion determination is made

by considering the totality of the circumstances.”       Ford v. State, 158 S.W.3d 488, 492-93

(Tex.Crim.App. 2005).

       Reasonable suspicion exists when a “police officer has ‘specific, articulable facts that,

when combined with rational inferences from those facts, would lead him to reasonably conclude

that the person detained is, has been, or soon will be engaged in criminal activity.’” Furr v. State,

499 S.W.3d 872, 878 (Tex.Crim.App. 2016)(quoting Wade v. State, 422 S.W.3d 661, 668

(Tex.Crim.App. 2013)). A reasonable suspicion determination is an objective standard, and an

“objectively justifiable basis for the detention” must be established. Wade, 422 S.W.3d at 668.

The standard also requires a reviewing court to assess the totality of the circumstances to determine

whether the officer had an objective suspicion of criminal activity. Id. To find that reasonable

suspicion exists, the “legality of a traffic stop based on reasonable suspicion does not depend upon

a showing that an actual offense was committed; it is sufficient to show that the officer reasonably




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believed that an offense was in progress.” State v. Torrez, 490 S.W.3d 279, 283 (Tex.App.--Fort

Worth 2016, pet. ref'd).

       In Wehring v. State, the court held that reasonable suspicion to initiate a traffic stop exists

when an officer reasonably believes that a traffic violation has occurred. Wehring v. State, 276

S.W.3d 666, 671 (Tex.App.--Texarkana 2008, no pet.). There, an officer observed the defendant

driving over the speed limit. Id., at 668. Since the officer did not have a radar unit that could

register the vehicle’s speed, he continued to follow the vehicle and observed the defendant make

a right turn without signaling. Id. The officer conducted a traffic stop because the defendant’s

failure to signal intent to turn was a violation of Section 545.104 of the Texas Transportation Code.

Id. The traffic stop resulted in a DWI arrest and the defendant filed a motion to suppress. Id.

The court concluded the traffic stop was proper because the officer believed the defendant’s failure

to signal was a traffic violation, and “[i]f an officer has a reasonable basis for suspecting that a

person has committed a traffic offense, the officer may legally initiate a traffic stop.” Id., at 669,

(quoting Zervos v. State, 15 S.W.3d 146, 151 (Tex.App.--Texarkana 2000, pet. ref'd)). The court

held the denial of the motion to suppress the evidence relating to the DWI was proper because it

was gathered after the lawful traffic stop. Id., at 671. An officer may conduct a traffic stop if he

reasonably believes that the driver is committing DWI. See Alderete, 314 S.W.3d at 473 (citing

Curtis v. State, 238 S.W.3d 376, 379 (Tex.Crim.App. 2007). Relevant evidence in determining

whether there was reasonable suspicion to stop a driver for DWI include: whether the stop was

made late at night; weaving by the driver; and the training and experience of the officer in DWI

investigations. See Alderete, 314 S.W.3d at 473; Curtis, 238 S.W.3d at 379–80. A reviewing

court should consider the lateness of the hour when the arrest was made and the arresting officer’s


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experience specifically in detecting intoxicated drivers, as well as “rational inferences” from the

facts articulated by the officer. Curtis, 238 S.W.3d at 381.

       The facts of this case are similar to Alderete. There, the driver was stopped on suspicion

that she was driving while intoxicated because she was swerving within her lane of travel at

approximately 3 a.m., but not because of any suspected traffic violation. Alderete, 314 S.W.3d at

471. Both arresting officers testified that they had received training in investigating driving-

while-intoxicated offenses, and that in their training and experience, some of the common

characteristics exhibited by intoxicated drivers included driving late at night and swerving within

or outside a driver’s lane of traffic. Id. The trial court granted the driver’s motion to suppress,

and in its entered findings of fact and conclusions of law stated that the officers’ testimonies were

credible, but that the driver’s swerving within the lane was not a traffic code violation and that the

officers lacked authority to initiate the stop. Id. This Court reversed the trial ruling because the

trial court committed error in only considering whether the officers had reasonable suspicion to

stop the driver based on a traffic violation, however, we determined that the officers had reasonable

suspicion to stop the driver based on DWI. Id., at 474 –75.

       Here, at the time of Espinoza’s arrest, Officer Wilkinson testified that he had been a peace

officer with the El Paso Police Department for nine and a half years and was assigned to the DWI

Task Force. He also testified that he was SFST certified, had taken numerous courses on

intoxicated drivers, and had attended numerous training sessions related to those topics. Thus,

his testimony established that he had ample training and experience in detecting intoxicated

drivers, similar to the officers in Alderete, and that in his experience, a driver drifting from lane to

lane late at night is, in and of itself, a sign of intoxication. Officer Wilkinson also testified that


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he stopped Espinoza an area known to contain many drinking establishments at approximately 2

a.m., the time when many bars are closing. We are compelled to consider these latter facts, and

it would be error for us to consider only the fact that Espinoza was weaving within his own lane.

See Curtis, 238 S.W.3d at 379–81. While Officer Wilkinson did not articulate DWI as the reason

he conducted the stop, the prosecutor urged the trial court to find the stop was legal basis for a

DWI temporary detention. As the trial court did not address DWI as a basis for the stop in its

entered findings, it should be treated as having been implicitly rejected by the trial court. See

Alderete, 314 S.W.3d at 473.

        Although Officer Wilkinson did not testify that he stopped Espinoza for suspicion of DWI,

if there was a correct basis for the stop of which the officer knew or could have known (i.e., DWI),

the mere fact that the officer subjectively believed the stop was justified for another reason will

not render the stop illegal. See Gendron, 2015 WL 632215, at *6 (citing Whren v. United States,

517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); Duran, 396 S.W.3d at 570.

Likewise, the trial court did not enter specific findings regarding Officer Wilkinson’s testimony,

and we, therefore, find his credibility is not in dispute.

        When viewing the totality of the circumstances and considering the arresting officer’s

training and experience in conducting DWI investigations, we find that, based on rational

inferences from the on-board video and his testimony, Officer Wilkinson could have formed

reasonable suspicion to stop Espinoza on suspicion of driving while intoxicated when he observed

Espinoza weaving within his own lane and cross over the lane marker at one point, and when the

stop was made in an area with many drinking establishments nearby at approximately 2 a.m., the

time when many of those establishments were closing. See Alderete, 314 S.W.3d at 474 (finding


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that officers were justified in stopping a driver on suspicion of DWI when the driver was weaving

within her own lane late at night); see also Navarette v. California, 572 U.S. 393, 401-02, 134

S.Ct. 1683, 1690-91, 188 L.Ed.2d 680 (2014)(recognizing “weaving back and forth” as an

indicator of drunk driving [internal citation omitted]); Murrell v. State, No. 01-15-00200-CR, 2016

WL 2841201, at 2, 5-6 (Tex.App.--Houston [1st Dist.] May 12, 2016, pet. ref’d)(mem. op., not

designated for publication)(considering the lateness of the hour and the proximity of bars as

weighing in favor of the existence of reasonable suspicion to stop a suspected intoxicated driver).

        It is important to reiterate in this finding that proof of the actual commission of the offense

is not the perquisite for a finding of reasonable suspicion to conduct a traffic stop, but only specific

and articulable facts that lead to a reasonable suspicion that an offense has been committed.

Drago v. State, 553 S.W.2d 375, 377 (Tex.Crim.App. 1977). Likewise, it is not a requirement

that a traffic violation must be committed to allow an officer to stop a vehicle, and a stop based on

suspicion that a driver is intoxicated is legal. Alderete, 314 S.W.3d at 473 (citing Curtis, 238

S.W.3d at 379; James v. State, 102 S.W.3d 162, 172 (Tex.App.--Fort Worth 2003, pet. ref’d)).

Thus, the State did not need to prove that Espinoza was driving while intoxicated at the time the

stop was made, but only present facts supporting a reasonable suspicion that he may be driving

while intoxicated. The State did so during the suppression hearing when it showed that Officer

Wilkinson observed Espinoza was weaving within his own lane, late at night, and in an area with

many bars nearby.

        The trial court committed error when it did not consider in its conclusions of law whether

Officer Wilkinson had reasonable suspicion to stop Espinoza for DWI, but instead only considered

whether he had committed a traffic offense. See Alderete, 314 S.W.3d at 474 (holding that the


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trial court committed error when it failed to consider whether reasonable suspicion to stop a driver

for DWI existed, and when it only considered whether reasonable suspicion to stop the driver for

traffic violations existed). Thus, we find that the trial court abused its discretion by granting

Espinoza’s motion to suppress, and because Officer Wilkinson had reasonable suspicion to stop

Espinoza, we sustain the State’s fourth issue. We, therefore, do not reach the State’s Issues One,

Two, and Three.

                                         CONCLUSION

       We sustain the State’s fourth issue, reverse the trial court’s order granting Espinoza’s

motion to suppress, and remand the case to the trial court.



November 30, 2018
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.
Palafox, J. Dissenting

(Do Not Publish)




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