                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00512-CR


JAYSON VESTUS RITCHIE                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                   Introduction

      The trial court denied Appellant Jayson Vestus Ritchie’s motion to

suppress evidence obtained after the police stopped his car. Appellant reserved

his right to appeal the trial court’s ruling, and pled guilty to driving while

intoxicated—felony repetition.2 The trial court fined Appellant $1,350 and placed

      1
       See Tex. R. App. P. 47.4.
      2
       Tex. Penal Code Ann. § 49.09(b)(2) (West Supp. 2011).
him on ten years’ community supervision. In his sole point on appeal, Appellant

contends that the trial court abused its discretion by denying his motion to

suppress because the officer stopped him without reasonable suspicion. We

affirm.

                               Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review, giving almost total deference to the trial court’s

determination of historical facts and reviewing de novo the trial court’s application

of law to facts that do not turn on assessments of credibility and demeanor.

Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Estrada v. State,

154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488,

493 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim.

App. 1997).

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State

v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court

makes explicit fact findings, as the trial court did here, we determine whether the

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

supports those findings. Kelly, 204 S.W.3d at 818–19. We then review the trial

court’s legal ruling de novo unless its explicit fact findings that are supported by

the record also resolve the legal issue. Id. at 818.


                                         2
                  The Trial Court’s Findings and Conclusions

      After the hearing on Appellant’s motion to suppress, the trial court made

the following findings of fact:

      Officer Mario Merendon of the Keller Police Department stopped this
      Defendant March 28, 2008[,] shortly after 12:18 a.m. on Davis Blvd.
      in Keller, Texas. The officer stopped him for a number of reasons,
      all of which contributed to and resulted in the stop. The Defendant’s
      driving was recorded by Officer Merendon’s car video and
      subsequently introduced into evidence. The reasons for the stop
      were as follows:

             1). The Defendant was in the right hand lane and veered out
             of the lane, completely crossing the white line, then returned
             to the lane. This is a violation of 545.060 of the Transportation
             Code (failing to maintain a single lane) if it is done in an
             unsafe manner. The Officer testified that it was unsafe due in
             part to the fact that he failed to signal his intent to make a lane
             change. It is also dangerous because it gives other drivers no
             notice that the Defendant may be moving into their lane; also,
             a person not staying in their own lane can cause accidents
             with other drivers, or hit a stationary object.

             2). The Defendant then crossed over a striped area dividing
             the main portion of the traveling highway and a turn lane for
             some private business. This is a violation of 545.004 of the
             Transportation Code (failure to comply with a traffic control
             device).

             3). The Defendant was driving late at night, was weaving,
             failing to signal lane changes, and was exceedingly slow to
             respond when the Officer finally did activate his overhead
             lights. He also did turn on his turn signal when the officer was
             pulling him over, then turned it off, and then turned it on. His
             indecisiveness may also have been an indication that he was
             impaired. When he pulled the Defendant over he then
             smelled alcohol. The arrest in this case was effected without
             a warrant.




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       All of the factors listed above were considered by Officer Merendon
       and were operative in his decision to detain and investigate the
       Defendant for DWI.

       Based on these findings, the trial court concluded that the officer had

properly detained Appellant because Appellant had committed two traffic

violations, and independent of these violations, the officer had reasonable

suspicion to investigate whether Appellant had been driving while intoxicated

(DWI).

                                     The Issue

       The evidence at the suppression hearing consisted solely of the testimony

of Keller Police Officer Mario Merendon and a DVD copy of the officer’s in-car

video record of the events leading up to and including the stop.

       Appellant contends that the trial court’s failure to suppress the fruits of the

stop violated his rights under the Fourth Amendment to the United States

Constitution, Article I, Section 9 of the Texas constitution, and code of criminal

procedure article 38.23. He argues that, contrary to the trial court’s findings of

fact and conclusions of law, the evidence shows that Officer Merendon observed

no traffic violations and had no reasonable suspicion to investigate Appellant for

DWI.     We need not decide whether the evidence supports the trial court’s

conclusion that the officer reasonably suspected that Appellant had committed

any traffic offenses because, having examined the evidence in the light most

favorable to the trial court’s ruling, we hold that it supports the trial court’s

conclusion that reasonable suspicion existed to stop Appellant for DWI.


                                          4
                             Reasonable Suspicion

      The Fourth Amendment protects citizens against unreasonable searches

and seizures by government agents. 3        U.S. Const. amend. IV; see State v.

Garcia-Cantu, 253 S.W.3d 236, 238 (Tex. Crim. App. 2008).            A seizure is

reasonable under the Fourth Amendment if the agent reasonably suspects the

person of engaging in criminal activity. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct.

1868, 1880 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App.

2000).

      The court of criminal appeals has held that traffic stops are seizures within

the meaning of the Fourth Amendment. Corbin v. State, 85 S.W.3d 272, 276

(Tex. Crim. App. 2002); see Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim.

App. 1989); see also Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391,

1396 (1979).    Because a routine traffic stop typically involves only a short,

investigative detention, as opposed to a custodial arrest, we analyze traffic stops

under the principles the Supreme Court developed for investigative detentions in

Terry. 392 U.S. at 22, 88 S. Ct. at 1880; see Berkemer v. McCarty, 468 U.S.



      3
       Where, as in this case, the appellant does not separately brief state and
federal constitutional claims, we assume that he claims no greater protection
under the state constitution than that provided by the federal constitution. Fowler
v. State, 266 S.W.3d 498, 501 n.2 (Tex. App.—Fort Worth 2008, pet. ref’d) (en
banc). Therefore, we analyze Appellant’s claim solely under the Fourth
Amendment to the United States Constitution, following guidelines set by the
United States Supreme Court in interpreting the Fourth Amendment. See State
v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App. 1998).


                                        5
420, 104 S. Ct. 3138 (1984); Martinez v. State, 236 S.W.3d 361, 369 (Tex.

App.—Fort Worth 2007, no pet.).

      A police officer conducts a lawful temporary detention when he has

reasonable suspicion to believe that an individual is violating the law. Ford, 158

S.W.3d at 492; Ballentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).

Reasonable suspicion exists when, based on the totality of the circumstances,

the officer has specific, articulable facts that when combined with rational

inferences from those facts would lead the officer to reasonably conclude that a

particular person actually is, has been, or soon will be engaged in criminal

activity. Ford, 158 S.W.3d at 492; Garcia v. State, 43 S.W.3d 527, 530 (Tex.

Crim. App. 2001). This is a wholly objective test that disregards any subjective

intent of the officer making the stop and looks solely to whether an objective

basis for the stop existed at the time the officer made the stop. Ford, 158 S.W.3d

at 492; Garcia, 43 S.W.3d at 530; see Fowler, 266 S.W.3d at 502. A reasonable-

suspicion determination is made by looking at the totality of the circumstances.

Ford, 158 S.W.3d at 492–93; Garcia, 43 S.W.3d at 530.

                                    Analysis

      According to the trial court’s conclusions of law, reasonable suspicion

existed to support Appellant’s detention to investigate him for DWI due to the

following specific facts: Appellant was driving late at night, weaving out of his

lane, failing to signal lane changes, driving over marked prohibited areas, was

―exceedingly‖ slow to respond when the officer activated his emergency lights,


                                        6
activated his turn signal, turned it off again, turned it on again, and smelled of

alcohol when the officer approached him.

      Because our inquiry is whether Appellant’s detention was supported by

reasonable suspicion, it is important to note when that detention began. A Fourth

Amendment seizure occurs when a reasonable person would believe he or she is

not free to leave and has yielded to a government agent’s show of authority or

has been physically forced to yield. California v. Hodari D., 499 U.S. 621, 627–

28, 111 S. Ct. 1547, 1551–52 (1991); Johnson v. State, 912 S.W.2d 227, 236

(Tex. Crim. App. 1995); Wiseman v. State, No. 02-06-00021-CR, 2006 WL

3334171, at *3 (Tex. App.—Fort Worth Nov. 16, 2006, pet. ref’d) (mem. op., not

designated for publication). Therefore, we hold that as soon as Appellant pulled

over to the side of the road and yielded to the officer’s show of authority in the

form of flashing emergency lights, he was detained. See Hodari D., 499 U.S. at

627–28, 111 S. Ct. at 1551; Corbin, 85 S.W.3d at 276–79; see also Brendlin v.

California, 551 U.S. 249, 254, 127 S. Ct. 2400, 2405 (2007) (stating that a police

officer may make a seizure by a show of authority and without the use of physical

force, but there is no seizure without actual submission; otherwise, there is at

most an attempted seizure).

      In determining whether reasonable suspicion justified the detention, we do

not consider evidence obtained after Appellant was detained. Of the above cited

facts relied upon by the trial court in concluding that reasonable suspicion

supported the detention for DWI, evidence that Appellant smelled of alcohol


                                        7
when the officer approached his window falls within this category and does not,

therefore, figure into our analysis.

       Other facts, however, cited from the time the officer began following

Appellant to the time that Appellant yielded to his show of authority—that is,

when Appellant pulled over and stopped—do figure in the analysis and will be

compared against the evidence in the record. These include the following: that

Appellant was driving late at night, weaving out of his lane, failing to signal lane

changes, driving over marked prohibited areas, was ―exceedingly‖ slow to

respond when the officer activated his emergency lights, engaged his turn signal,

turned it off again, and turned it on again.

Driving Late at Night

       Officer Merendon testified that he was working the midnight shift when, at

approximately 12:18 a.m., he first observed Appellant’s Chevy Tahoe. A DVD

copy of the officer’s dashboard video recording corroborates that time and was

obviously made at night: the roadway is dark and the few vehicles depicted have

their headlights on. The evidence supports the finding that Appellant was driving

late at night.

Weaving

       Officer Merendon also testified that he was following Appellant’s Tahoe in

the right of two southbound lanes on Davis when he saw it ―veer off to the right of

the lane‖ so that the ―right tires crossed completely over‖ a solid white line

separating a striped area from the rest of the roadway. He further testified that


                                          8
he ―observed the tires completely cross that white line and then continue back

onto the right lane.‖ Then, within seconds, Appellant crossed over the striped

portion of the roadway separating the two southbound lanes and his tires rolled

onto the striped line and partially into the left lane.

      The DVD shows the right tires of the Tahoe traveling on the solid white

stripe separating the right lane from a diagonally striped area between the right

hand lane and a turn lane leading off the roadway. The DVD also displays the

time in seconds. According to the DVD, the recording commenced at 00:18:14.

Appellant’s right tires can be seen approaching the solid white line at 00:18:29,

they are on top of the line at 00:18:30, and are off it again by 00:18:31. The

Tahoe appears to weave slightly within its lane and then, at 00:19:00, it

approaches the dashed white line separating the right southbound lane from the

left. The left tires next appear to touch the dashed line at 00:19:06 and cross

completely over it between 00:19:07 and 00:19:08. By 00:19:09, the car is again

completely within the right hand lane.

      Although the weaving is neither pronounced nor extreme, it is weaving

nonetheless, and in the light most favorable to the trial court’s ruling, we must

therefore hold that the evidence supports the trial court’s finding that Appellant

weaved out of his lane. See Wiede, 214 S.W.3d at 24; Kelly, 204 S.W.3d at

818–19.




                                            9
Failing to Signal Lane Changes

      The prosecutor asked Officer Merendon whether he saw Appellant ―on

multiple occasions change lanes or at least go out of the lane without signaling

his intention to do so?‖ Because the DVD does not show Appellant actually

changing lanes but, as we have discussed, it does show him weaving, we

interpret Officer Merendon’s response, ―correct,‖ to refer to the second part of the

State’s question, and therefore evidence that he did not see Appellant use a turn

signal when Appellant weaved outside his lane.

      But, as the State pointed out, a driver is required to signal an intention to

change lanes.    See Tex. Transp. Code Ann. § 545.104(a) (West 2011) (―An

operator shall use the signal . . . to indicate an intention to turn, change lanes, or

start from a parked position.‖). The State begged the question that Appellant’s

weaving indicated his intent to change lanes, which would require that he signal

that intent by using a turn signal.     We fail to see how evidence of weaving

supports an inference that Appellant intended to change lanes. Indeed, it seems

more likely to imply the contrary.      Moreover, evidence that Appellant stayed

mostly in one lane of travel, deviating twice by at most a tire’s width, suggests

that he did not intend to change lanes. Either Appellant intended to stay within

his lane but weaved or he intended to change lanes but failed to signal. Absent

evidence that Appellant intended to change lanes to counter the evidence that he

did not, we hold that even in the light most favorable to the trial court’s ruling, the




                                          10
finding that Appellant failed to signal lane changes is not supported by the

record.

Driving Over Marked Prohibited Areas

      In its conclusions of law, the trial court noted that one of the facts that

supported its conclusion that the officer had reasonable suspicion was that

Appellant was ―driving over marked prohibited areas.‖ In its findings of fact,

however, the trial court did not specifically find that Appellant drove over marked

prohibited areas. Officer Merendon testified that he witnessed the right tires of

Appellant’s Tahoe cross ―completely over the solid white line‖ of a ―striped area‖

that is ―clearly not a marked lane for traffic‖ and that cars are not supposed to

drive over and through. As discussed above in connection with the trial court’s

finding that Appellant was weaving, the DVD shows Appellant’s right tires

traveling on the solid white line for approximately one second. Our review of the

DVD does not, however, show that the tires went so far as to support a

conclusion that Appellant crossed completely over the line and actually drove

onto the striped area. We hold, therefore, that even when viewed in the light

most favorable to the trial court’s ruling, the evidence does not support a finding

that Appellant drove ―over marked prohibited areas,‖ as distinct from a finding

that he merely weaved to the right slightly out of his lane. We consider this

evidence, therefore, as additional support for the trial court’s finding that

Appellant weaved from his lane and not for a finding that he drove into a

prohibited area.


                                        11
“Exceedingly” Slow to Respond

      The trial court found that Appellant was ―exceedingly‖ slow to respond to

Officer Merendon’s emergency lights. Officer Merendon testified that Appellant

was traveling at forty miles an hour, that it took Appellant approximately twenty to

twenty one seconds to respond, and that Appellant’s slow response concerned

him that Appellant might be trying to hide something or that ―if a person was

intoxicated, they may be slow to respond.‖

      The DVD shows that Appellant pulled off the road approximately forty

seconds after the officer activated his emergency lights. There is no evidence in

the record of what is a normal or average response time; thus, it is difficult to

assess the trial court’s use of the adverb ―exceedingly‖ in characterizing the

speed (or lack thereof) of Appellant’s response. However, from our review of the

DVD, it is apparent that Appellant did not pull over immediately after Officer

Merendon activated his emergency lights, and in that regard, the evidence

viewed in the light most favorable to the ruling supports a finding that Appellant’s

response was delayed if not ―exceedingly slow.‖

Turn Signal On, Off, On

      Finally, the trial court equates Appellant’s use of his turn signal with

―indecisiveness‖ that might indicate Appellant’s impairment. The DVD shows that

during a six second time span, the turn signal came on, went off, and came on

again before Appellant pulled over, and Officer Merendon testified that this




                                        12
suggested that Appellant might have been intoxicated. Viewed in the appropriate

light, we hold that the evidence supports the trial court’s finding.

          The Supported Findings Add Up to Reasonable Suspicion

      Having viewed the evidence in the light most favorable to the trial court’s

ruling and having compared the record evidence with the trial court’s findings, we

hold that the following are supported by the evidence: Appellant was driving late

at night, weaved, was slow to respond, and used his turn signals in a way to

suggest a degree of impairment. The question now is whether these facts, given

the totality of the circumstances, support the trial court’s conclusion that Officer

Merendon had reasonable suspicion to stop Appellant for DWI.

      In Curtis v. State, a novice highway trooper and his field-training officer,

who had years of experience and specialized training in detecting intoxicated

drivers, saw Curtis’s vehicle weaving in and out of its lane over a short distance

late at night. 238 S.W.3d 376, 377 (Tex. Crim. App. 2007). The court of appeals

held that the trial court had erred by denying Curtis’s motion to suppress because

the troopers did not have reasonable suspicion to stop his vehicle for DWI. Id.

The court of criminal appeals reversed, holding that the court of appeals

improperly applied the standard of review by failing to consider the totality of the

circumstances and rational inferences from the facts, both of which supported the

trial court’s conclusion that the troopers had reasonable suspicion to investigate

Curtis for DWI. Id. at 381.




                                          13
      In Dunkelburg v. State, this court held that reasonable suspicion for DWI

was shown when the officer testified that he stopped the appellant because he

believed there was a ―possibility‖ that the appellant was driving while intoxicated.

276 S.W.3d 503, 507 (Tex. App.—Fort Worth 2008, pet. ref’d). The officer’s

dashboard video supported the officer’s testimony that the appellant was

weaving, crossed the lane divider at least once, and was slow to react to the

officer’s emergency lights. Id. The officer further testified that in his experience,

intoxicated drivers are frequently encountered at that time of night and that his

training showed that weaving is one of the clues that a driver is intoxicated. Id.

      In James v. State, a patrolling sheriff’s deputy believed that the driver of a

Jeep Cherokee might have been impaired after he saw the Cherokee leave a

rest stop, fail to signal as it entered the freeway, cross the center stripe between

the northbound lanes, and then veer back over the yellow stripe onto the

shoulder. 102 S.W.3d 162, 167 (Tex. App.—Fort Worth 2003, pet. ref’d). This

court held that the officer had reasonable suspicion to stop the driver for DWI. Id.

at 172.

      In McQuarters v. State, this court held that a late night traffic stop was

justified based on reasonable suspicion that the appellant, whose vehicle

crossed the left lane stripe twice while traveling at slow speed in the left lane of

the interstate, was intoxicated. 58 S.W.3d 250, 253, 255 (Tex. App.—Fort Worth

2001, pet. ref’d).




                                         14
      Applying these precedents, considering the totality of the circumstances in

the light most favorable to the trial court’s ruling, and keeping in mind that the test

for reasonable suspicion is wholly objective and disregards the subjective intent

of the officer, we hold that the evidence in the record supports the trial court’s

conclusion that the officer had reasonable suspicion to justify stopping Appellant

to investigate him for DWI. Accordingly, we overrule Appellant’s sole issue.

                                    Conclusion

      Having overruled Appellant’s sole issue, we affirm the trial court’s

judgment.




                                                     LEE GABRIEL
                                                     JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

LIVINGSTON, C.J., concurs without opinion

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 5, 2012




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