                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00046-CR



     CHRISTOPHER MARCUS HATTER, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 4th District Court
                 Rusk County, Texas
              Trial Court No. CR16-028




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                                MEMORANDUM OPINION
       A jury convicted Christopher Marcus Hatter of driving while intoxicated (DWI), third or

more, and assessed a sentence of fourteen years’ imprisonment. In his sole point of error on appeal,

Hatter argues that the trial court erred in failing to grant his motion to suppress the evidence

because there was no probable cause to arrest Hatter for DWI. We disagree and affirm the trial

court’s judgment.

I.     Standard of Review

       “In a hearing on a motion to suppress evidence, a defendant bears the initial burden of

proof to demonstrate that the search and seizure occurred without a warrant.” Hitchcock v. State,

118 S.W.3d 844, 848 (Tex. App.—Texarkana 2003, pet. ref’d) (citing Bishop v. State, 85 S.W.3d

819, 821 (Tex. Crim. App. 2002)). Once the defendant demonstrates that a warrantless search

occurred, the burden shifts to the State to prove that a warrant existed or that an exception, under

either the Fourth Amendment to the United States Constitution or Article I, Section 9, of the Texas

Constitution, justified the warrantless search given the totality of the circumstances. State v.

Steelman, 93 S.W.3d 102, 106 n.5 (Tex. Crim. App. 2002); Bishop v. State, 85 S.W.3d 819, 822

(Tex. Crim. App. 2002); Hitchcock, 118 S.W.3d at 848. If clear and convincing proof satisfying

the State’s burden is not offered before the trial court, then the illegally obtained evidence may not

be admitted at trial. See State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997) (Mansfield,

J., concurring); Hitchcock, 118 S.W.3d at 848. In the present case, the parties agree that the search

in question was executed without a warrant. Consequently, the State was required to prove the

existence of a valid exception to the Fourth Amendment.


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       We review a trial court’s ruling on a motion to suppress under a bifurcated standard of

review, giving almost total deference to the trial court’s determination of historical facts that turn

on credibility and demeanor while reviewing de novo other application-of-law-to-fact issues. See

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d

323, 327 (Tex. Crim. App. 2000). Appellate courts should also afford nearly total deference to

trial court rulings on application-of-law-to-fact questions, also known as mixed questions of law

and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and

demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellate courts may

review mixed questions of law and fact not falling within this category on a de novo basis. Id. We

must affirm the decision if it is correct on any theory of law that finds support in the record.

Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).

       The record in this case contains no findings of fact. When the trial court does not file

findings of fact, we should assume that the trial court made implicit findings that support its ruling,

so long as those implied findings are supported by the record. Gutierrez v. State, 221 S.W.3d 680,

687 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). The trial

court’s evidentiary ruling “will be upheld on appeal if it is correct on any theory of law that finds

support in the record.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006); see

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

II.    The Suppression Hearing

       Leslie Brian Thurston, a trooper for the Texas Department of Public Safety, testified that

he was on his way home from his shift in his personal vehicle when he spotted a sports-utility

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vehicle (SUV) driving on a four-lane road “at a very slow rate of speed, approximately 10 miles

per hour.” According to Thurston, the “vehicle was swerving severely. . . it was an extreme case.”

Thurston witnessed the SUV travel from the outside left lane, across the inside left lane and the

turn lane, and then into oncoming traffic. He testified that the vehicle would speed up and then

slow back down again to ten miles per hour and that this occurred several times.

       Thurston passed the SUV when it nearly came to a stop in the middle of the road and

noticed that the man driving the vehicle, later identified as Hatter, had a “a blank gazing stare . . .

on his face” with a “drooped open” mouth. According to Thurston, Hatter drove through a stop

sign without stopping and pulled into the driveway of a residence. After Thurston passed the

driveway, Hatter pulled out and started driving in the opposite direction, away from Thurston. At

that point, Thurston decided to stop Hatter for reckless driving and because he believed he might

be intoxicated. He called dispatch to send a marked patrol unit to the scene.

       Thurston testified that he continued to follow behind Hatter, who was then driving at sixty

to seventy miles per hour and swerving severely. Thurston conducted the traffic stop before a

marked unit could arrive. According to Thurston, Hatter stopped in the road, jumped out, threw

his hands in the air, as if provoking physical confrontation, and started walking aggressively

towards Thurston’s truck.

       Thurston testified that, when he first encountered Hatter, there was a strong smell of

alcohol on his person and that he had exhibited a lack of coordination. When Thurston, who was

wearing plain clothes, identified himself as a police officer by yelling, “Police, police” and

showing him his badge and identification, Hatter got down to the ground. Thurston, who had left

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his telephone in his car, went to retrieve it while instructing Hatter to remain on the ground. Hatter,

who did not heed the warning, jumped back up, ran towards his car, and attempted to drive away

before Thurston grabbed and restrained him.

       Jarod Sears, a Sergeant with the Kilgore Police Department, arrived to find that Hatter had

already been arrested by Thurston. According to Sears, Thurston said that Hatter was under arrest

for DWI based on “driving extremely reckless.” Sears testified that Hatter had red, glassy eyes,

was belligerent, and had an open “40 ounce [bottle] of Bud Ice” in his car, with approximately ten

ounces left in the bottle. Sears’ dash-cam recording was introduced at the suppression hearing.

According to Sears, when he asked Hatter to perform field sobriety tests, Hatter “stated he would

just give blood.” Sears testified that Hatter was transported to the “Kilgore Good Shepherd

Hospital” for the blood draw.

III.   Analysis

       Hatter was arrested for DWI following a traffic stop for reckless driving. Because a routine

traffic stop implicates the United States and Texas Constitutions, the traffic stop must be

reasonable. See Berkemer v. McCarty, 468 U.S. 420, 436–37 (1984); see also U.S. CONST. amend.

IV; TEX. CONST. art. I, § 9; Bobo v. State, 843 S.W.2d 572, 574 (Tex. Crim. App. 1992).

       “To initiate an investigative stop, an officer must possess a reasonable suspicion based on

specific, articulable facts that, in light of the officer’s experience and general knowledge, would

lead the officer to conclude reasonably that the person detained actually is, has been, or soon will

be engaged in criminal activity.” Earl v. State, 362 S.W.3d 801, 802–03 (Tex. App.—Texarkana

2012, pet. ref’d) (footnote omitted) (citing United States v. Sokolow, 490 U.S. 1, 10 (1989); Garcia

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v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)). “These facts must be more than a mere

hunch or suspicion.” Id. at 803 (citing Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App.

1997)). “In determining whether an officer has reasonable suspicion to detain, we look at the

totality of the circumstances through an objective lens, disregarding the officer’s subjective

intent.” Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim. App. 2014).

       Hatter does not dispute that Thurston had reasonable suspicion to initiate the traffic stop.

Here, Thurston’s testimony established that he witnessed Hatter driving in a reckless manner in

violation of Section 545.401 of the Texas Transportation Code. See TEX. TRANS. CODE ANN.

§ 545.401 (West 2011). “If an officer has a reasonable basis for suspecting that a person has

committed a traffic offense, the officer may legally initiate a traffic stop.” Zervos v. State, 15

S.W.3d 146, 151 (Tex. App.—Texarkana 2000, pet. ref’d). Moreover, Thurston testified that he

also suspected Hatter of DWI prior to the investigative stop due to his erratic driving, “blank gazing

stare,” and “drooped open” mouth.

       Once Hatter was lawfully stopped, Thurston testified that he immediately smelled alcohol

on his person. The smell of alcohol, coupled with Hatter’s driving, lack of coordination, and

belligerence, supplied the probable cause required to arrest Hatter for DWI. See Washburn v.

State, 235 S.W.3d 346, 351 (Tex. App.—Texarkana 2007, no pet.). Accordingly, we conclude

that the trial court properly denied Hatter’s motion to suppress. We overrule Hatter’s sole issue

on appeal.




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II.   Conclusion

      We affirm the trial court’s judgment.




                                              Ralph K. Burgess
                                              Justice

Date Submitted:      August 28, 2017
Date Decided:        September 18, 2017

Do Not Publish




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