                              Fourth Court of Appeals
                                     San Antonio, Texas

                                MEMORANDUM OPINION
                                        No. 04-12-00809-CR

                                       Juan Jose GARZA Jr.,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                    From the 216th Judicial District Court, Bandera County, Texas
                                     Trial Court No. CR-12-063
                            Honorable Stephen B. Ables, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 19, 2013

AFFIRMED

           Appellant Juan Jose Garza Jr. was charged with driving while intoxicated with a child

passenger. After the trial court denied his motion to suppress, Garza pled guilty. The trial court

sentenced Garza to confinement for one year in the Bandera County Jail and a $500.00 fine, but

suspended the jail term and placed Garza on probation for one year. On appeal, Garza contends:
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(1) the trial court erred in denying his motion to suppress, and (2) the State had no reasonable

suspicion to stop him.1 We affirm the trial court’s judgment.

                                                  BACKGROUND

         At the hearing on the motion to suppress, Officer Steven Mayfield testified that on the

evening of April 6, 2012, he saw Garza driving a vehicle on State Highway 173 South in

Bandera County, Texas. Officer Mayfield testified Garza’s “driving habits were real jerky,

going from left to right,” so he began following Garza. Garza continued swerving in his own

lane. Officer Mayfield then saw Garza’s vehicle cross over the solid white fog line and drive

onto the improved shoulder. Officer Mayfield noted Garza failed to signal any of his movements

before he crossed over the line. Based on this erratic driving, Officer Mayfield determined

Garza had violated traffic laws and pulled the vehicle over for a traffic stop. Officer Mayfield

testified he also wanted to ensure Garza was not falling asleep or intoxicated.

         Officer Mayfield testified that after he pulled the vehicle over and approached Garza, he

could smell alcohol coming from within the vehicle. Officer Mayfield asked Garza if he had

been drinking, and Garza responded he drank about four beers that night. Officer Mayfield

testified Garza appeared to be intoxicated. Therefore, Officer Mayfield asked Garza to step out

of the vehicle and perform three standardized field sobriety tests—the horizontal gaze nystagmus

(“HGN”), the walk-and-turn, and the one-leg-stand. Officer Mayfield testified Garza failed all




1
  Both Garza and the State frame this issue as “whether the State fail[ed] to meet its burden of showing [there was]
probable cause to stop and detain [Garza].” The trial court’s findings of fact also mention there was “probable cause
to stop [Garza].” However, Garza’s arguments on appeal concern only the circumstances surrounding the initial
traffic stop, and do not address any actions after the stop that led to his arrest. Therefore, we will review this issue
under the standard necessary to make a temporary investigative or traffic stop—reasonable suspicion. See Garcia v.
State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (noting to initiate investigative stop, officer must possess
reasonable suspicion based on specific, articulable facts that, in light of officer’s experience and general knowledge,
would lead officer to reasonably conclude that person detained actually is, has been, or soon will be engaged in
criminal activity).

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three tests. Based on Garza’s erratic driving and poor performance on the field sobriety tests,

Officer Mayfield placed Garza under arrest for DWI with a child passenger.

       After hearing the evidence and argument, the trial court denied Garza’s motion to

suppress. Thereafter, Garza pled guilty to the charge of DWI with a child passenger and was

sentenced to one-year confinement, which was suspended and probated for one year. Garza then

timely perfected this appeal.

                                      MOTION TO SUPPRESS

       On appeal, Garza contends: (1) the trial court erred in denying his motion to suppress,

and (2) the officer had no reasonable suspicion to detain him. We disagree.

                                        Standard of Review

       We review the trial court’s denial of a motion to suppress under a bifurcated standard of

review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). A trial court’s

determination of historical facts will be given almost total deference, while the trial court’s

application of the law will be reviewed de novo. Carmouche v. State, 10 S.W.3d 323, 328 (Tex.

Crim. App. 2000). When the trial court issues findings of fact and conclusions of law, as in this

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

supports those findings. See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

“[T]he trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight

to be given to their testimony.” St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App.

2007). A trial court’s ruling on a motion to suppress will be upheld if there is any valid theory of

applicable law to the case, even if the trial court did not base its decision on that theory. State v.

Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).




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                              Applicable Law: Reasonable Suspicion

       Law enforcement officers may stop and briefly detain persons suspected of criminal

activity on less information than is constitutionally required for probable cause to arrest. Terry v.

Ohio, 392 U.S. 1, 22 (1968). The Fourth Amendment requires that a warrantless detention of a

person that amounts to less than a custodial arrest must be justified by reasonable suspicion.

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011); Ford v. State, 158 S.W.3d

488, 492 (Tex. Crim. App. 2005). An 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.”   Derichsweiler, 348 S.W.3d at 914.         This is an objective standard that

disregards the actual subjective intent of the arresting officer and considers, instead, whether

there was an 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.; Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007) (noting appellate

courts consider totality of circumstances in making reasonable suspicion determination). Under

this standard, the articulable facts on which the officer relied need only support a reasonable

belief that activity out of the ordinary is occurring or has occurred, that the person detained is

connected to the activity, and that the activity is related to crime. State v. Garcia, 25 S.W.3d

908, 912 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Moreover, the detaining officer does

not have to be personally aware of every fact that objectively supports reasonable suspicion. Id.

Rather, “the cumulative information known to the cooperating officers at the time of the stop is




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to be considered in determining whether reasonable suspicion exists.” Id. (citing Hoag v. State,

728 S.W.2d 375, 380 (Tex. Crim. App. 1987)).

                                            Application

       Garza argues the State did not meet its burden of demonstrating the reasonableness of the

stop. Specifically, Garza cites Hernandez v. State, 983 S.W.2d. 867 (Tex. App.—Austin 1998,

pet. ref’d) for the proposition that a slight drift into an adjacent lane of traffic and back did not

provide officer with reasonable suspicion that appellant was driving while intoxicated. Id. at

870–72. However, we find the facts of this case differ from those in Hernandez.

       In Hernandez, the court held a single instance of crossing a lane dividing line by 18 to 24

inches into a lane of traffic traveling the same direction, when the movement is not shown to be

unsafe or dangerous, did not give the officer a reasonable basis for suspecting that the appellant

had committed a traffic offense. Id. at 870–71.

       In this case, Officer Mayfield testified Garza’s conduct attracted his attention because

Garza was driving “real jerky, going from left to right” within his own lane. Officer Mayfield

then saw Garza’s vehicle cross over the solid white fog line on the right side and drive onto the

improved shoulder. Officer Mayfield also noted Garza failed to signal any of his movements

before he crossed over the line.

       Section 545.058 of the Texas Transportation Code notes that “an operator may drive on

an improved shoulder to the right of the main traveled portion of the roadway if that operation is

necessary and may be done safely, but only:

       (1) to stop, stand or park;

       (2) to accelerate before entering the main traveled lane of traffic;

       (3) to decelerate before making a right turn;



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       (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the

           highway, disabled, or preparing to make a left turn;

       (5) to allow another vehicle traveling faster to pass;

       (6) as permitted or required by an official traffic-control device; or

       (7) to avoid a collision.

TEX. TRANSP. CODE ANN. § 545.058 (West 2011).

       It is undisputed that the record before the trial court contained no evidence that Garza’s

driving on the improved shoulder was necessary or was for one of the specific purposes

authorized by statute. Therefore, Garza’s actions constituted a traffic violation that authorized

Officer Mayfield to make the traffic stop. See, e.g., State v. Dietiker, 345 S.W.3d 426, 430–31

(Tex. App.—Waco 2011, no pet.) (holding trial court erred in granting motion to suppress when

record contained no evidence appellant’s driving on shoulder was necessary or for one of

specific purposes authorized by Section 545.058); Tyler v. State, 161 S.W.3d 745, 750 (Tex.

App.—Fort Worth 2005, no pet.) (finding no evidence that driving on shoulder was necessary

under any of the statutory exceptions); Martinez v. State, 29 S.W.3d 609, 611–12 (Tex. App.—

Houston [1st Dist.] 2000, pet. ref’d) (holding trial court could have found reasonable suspicion

for stop based on statutory violation for driving on shoulder where trooper testified driver drifted

partially onto shoulder with right tires before pulling back into his lane of traffic); cf. Lothrop v.

State, 372 S.W.3d 187, 191 (Tex. Crim. App. 2012) (holding officer did not have reasonable

suspicion that appellant was illegally driving on improved shoulder when officer testified car in

front of appellant slowed down noticeably and appellant used shoulder to pass slowed car, as

authorized by Section 545.058(a)).




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       Furthermore, we hold Garza’s erratic driving and traffic violation gave Officer Mayfield

reasonable suspicion to initiate a traffic stop to check on the driver’s condition. See Aviles v.

State, 385 S.W.3d 110, 114 (Tex. App.—San Antonio 2012, pet. ref’d) (holding appellant’s

erratic driving and traffic violation authorized officer to make traffic stop). Because the State

established Officer Mayfield had reasonable suspicion to stop and detain Garza, we hold the trial

court did not err in denying Garza’s motion to suppress.

                                         CONCLUSION

       Based on the foregoing, we affirm the trial court’s judgment.


                                                     Marialyn Barnard, Justice

Do Not Publish




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