      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00133-CR



                                   Zenaida Aguilar, Appellant

                                                  v.

                                   The State of Texas, Appellee


            FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
                            NO. C-1-CR-09-222161,
           HONORABLE NANCY WRIGHT HOHENGARTEN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Following denial of her motion to suppress evidence, appellant Zenaida Aguilar

pleaded nolo contendere to the offense of driving while intoxicated. See Tex. Penal Code Ann.

§ 49.04 (West 2011). The trial court sentenced Aguilar to six days’ confinement in county jail and

a 90-day driver’s license suspension. In a single issue on appeal, Aguilar asserts that the trial court

abused its discretion in denying her motion to suppress evidence obtained as a result of what she

contends was an illegal traffic stop. We will affirm.


                                         BACKGROUND

               At the hearing on the motion to suppress, the trial court heard evidence that at

approximately 12:50 a.m. on December 19, 2009 Deputy Marc Taub of the Travis County Sheriff’s

Office observed a blue Chevy Tahoe fail to drive in a single marked lane while traveling on the east
frontage road of the 8800 block of IH-35. Specifically, Taub testified, “I observed a vehicle swerve

out of its lane to the right and started occupying two lanes at that moment and went back to the left

lane.” Taub observed the vehicle swerving to the left and to the right in its lane before entering the

highway. Taub testified that traffic in the area at that time was moderate to heavy and that there were

numerous vehicles in the vicinity of the Tahoe. Once the vehicle entered the highway, Taub

observed that it was traveling between 40 to 45 miles per hour, approximately 20 miles per hour

below the posted speed limit of 60 miles per hour. Although the vehicle remained in its lane on the

highway, Taub testified that it swerved within the lane, at times moving all the way to the white line

causing him to be concerned that it would strike vehicles in the adjacent lane. Taub followed the

Tahoe for one to two miles and continued to observe it traveling at a slow speed, “going left to right

and even at one point looked like it was going to sideswipe a semi-truck.”

               Based on his observations, Taub believed the vehicle was being driven in an unsafe

manner and was concerned that it was going to “start driving again in two lanes with heavy traffic”

on IH-35. Taub testified that he suspected at the time that the driver of the vehicle might be

intoxicated. This belief was based on the fact that the vehicle was traveling at an “excessively slow”

speed and was unable to stay in a single lane, which in his experience was consistent with an

intoxicated driver. Taub testified that based on his observations, both of the failure to stay in one

lane and the swerving within one lane while driving at an excessively slow speed, he decided to

make the traffic stop.

               Taub activated his lights, intending to cause the Tahoe to pull over on the shoulder.

The vehicle continued on, passing several safe locations to pull over, and finally stopped in an area



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adjacent to an entrance ramp, a location Taub considered dangerous. Feeling it was unsafe to get

out of his vehicle, Taub used his public address system to instruct the driver to pull forward and to

the right. The driver failed to respond to these instructions, causing Taub to get out and approach

the Tahoe where he instructed the driver to pull forward and to the right. Instead, the driver turned

on the left turn signal and, rather than exiting the highway, began driving on IH-35. The driver then

moved to the right, exited at Yager Lane, passed a side street, and finally came to a stop in the

roadway blocking the outside lane.

               On cross-examination, Taub admitted that on his police report and probable cause

affidavit he did not state that he suspected that the driver of the vehicle was intoxicated. He did,

however, affirm that he was suspicious of the manner in which she was driving, specifically having

“some suspicions that there may be possibly something wrong inside the vehicle” caused by

“characteristics [he] observed of her driving.” During cross-examination the trial court also had an

opportunity to view the dashboard camera recording Taub made of the Tahoe in the minutes

preceding the stop.

               At the conclusion of the hearing, the trial court denied the motion to suppress. After

Aguilar’s motion to suppress was denied, she pleaded nolo contendere to driving while intoxicated

and was sentenced as noted above. This appeal followed.


                                   STANDARD OF REVIEW

               “A trial court’s ruling on a motion to suppress, like any ruling on the admission of

evidence, is subject to review on appeal for abuse of discretion.” Amador v. State, 275 S.W.3d 872,

878 (Tex. Crim. App. 2009) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).

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“In other words, the trial court’s ruling will be upheld if it is reasonably supported by the

record and is correct under any theory of law applicable to the case.” Id. (quoting Ramos v. State,

245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008)). We reverse the ruling “only if it is outside the

zone of reasonable disagreement.” Dixon, 206 S.W.3d at 590. “In reviewing a trial court’s ruling

on a motion to suppress, appellate courts must view all of the evidence in the light most favorable

to the trial court’s ruling.” State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

When, as here, the trial court files no findings of fact or conclusions of law, we assume that the trial

court made implicit findings necessary to support its ultimate ruling so long as the implied findings

are supported by the record. See Valtierra v. State, 310 S.W.3d 442, 449 (Tex. Crim. App. 2010)

(stating that “[d]espite the lack of an explicit factual finding” on contested fact issue, reviewing

courts “still must view the totality of the facts in the light most favorable to the trial court’s ultimate

ruling”).


                                             DISCUSSION

                In her sole issue on appeal, Aguilar asserts that the trial court abused its discretion

in denying her motion to suppress because, in Aguilar’s view, the arresting officer did not have

reasonable suspicion to stop her. Specifically, Aguilar contends that irrespective of whether Taub

had available to him sufficient facts to give rise to a reasonable suspicion that Aguilar was

intoxicated, he did not have available to him sufficient articulable facts to give rise to a reasonable

suspicion that she had committed a specific traffic offense—violation of transportation code

section 545.060 regarding driving within a single lane. See Tex. Transp. Code Ann. § 545.060 (West

2011) (driving on roadway laned for traffic).

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                An officer may initiate a traffic stop if he reasonably suspects that the driver has

violated the law. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable

suspicion exists if the 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, or

soon will be, engaged in criminal activity. Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App.

2008); Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). In making this determination,

we consider the totality of the circumstances. Ford, 158 S.W.3d at 492; Garcia, 43 S.W.3d at 530.

                We first consider Aguilar’s contention that Taub did not observe an actual traffic

violation. Aguilar asserts that she did not commit the offense of failure to maintain a single lane

because, during the time that she “drifted into the adjacent lane,” there were no other vehicles in that

lane of travel, and Taub’s vehicle was well behind hers. We understand Aguilar to argue that

although she drifted into the adjacent lane and therefore failed to maintain a single lane, she did not

commit the offense of failure to maintain a single lane because, due to a lack of traffic, her

movement was not unsafe. See Tex. Transp. Code Ann. § 545.060(a) (providing that driver “shall

drive as nearly as practical entirely within a single lane and may not move from the lane unless that

movement can be made safely” (emphasis added)); Fowler v. State, 266 S.W.3d 498, 504-05 (Tex.

App.—Fort Worth 2008, pet. ref’d) (reversing trial court’s denial of motion to suppress because

there was no evidence that defendant’s failure to maintain single lane was done unsafely).

                Contrary to the inferences Aguilar draws from the evidence, the record supports the

conclusion that Aguilar violated transportation code section 545.060. Taub testified that he observed

vehicles around Aguilar’s car when it swerved out of its lane on the frontage road and that traffic was



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“moderate to heavy with vehicles in the area.” Taub also testified that Aguilar continued weaving

within her lane on the highway, giving him reason to suspect that she was about to violate section

545.060 again. The video from Taub’s dashboard camera demonstrates that there were other cars

both on the frontage road and on the highway, and that traffic was, as Taub testified, moderate to

heavy. Because there was traffic in the vicinity of Aguilar’s vehicle, the trial court did not abuse its

discretion in finding that Taub had articulated facts sufficient to give rise to a reasonable suspicion

that Aguilar committed the traffic offense of failure to maintain a single lane when she traveled out

of her lane in traffic, i.e., unsafely, on the frontage road and continued to weave within her lane once

on the highway. See Cook v. State, 63 S.W.3d 924, 928 (Tex. App.—Houston [14th Dist.] 2002, pet.

ref’d) (concluding that officer was not required to wait to initiate traffic stop “until appellant placed

himself or others in immediate peril as a result of his erratic driving”).

                Moreover, while Taub testified that he believed Aguilar had committed a traffic

offense, he also testified that he conducted the stop because he believed, based on everything he had

observed, that Aguilar was driving while intoxicated. There is no requirement that a traffic

regulation must be violated in order for an officer to have sufficient reasonable suspicion to justify

a traffic stop. See James v. State, 102 S.W.3d 163, 173 (Tex. App.—Fort Worth 2003, pet. ref’d).

Rather, an officer may be justified in stopping a vehicle based on a reasonable suspicion of driving

while intoxicated. See Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007). The trial court

did not abuse its discretion in denying the motion to suppress if, based on the totality of the

circumstances, Taub had reasonable suspicion to believe Aguilar was driving while intoxicated. See

Ramos, 245 S.W.3d at 418 (appellate court must uphold trial court’s ruling “if it is reasonably



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supported by the record and is correct under any theory of law applicable to the case”). The evidence

of erratic driving at a speed well below the posted limit, along with the additional evidence that the

driving was occurring on a Saturday morning at approximately 12:50 a.m. and that Taub had, in his

two years in the Travis County Sheriff’s Office DWI Enforcement Unit, observed these to be

common traits of intoxicated drivers, supports the trial court’s finding that Taub had reasonable

suspicion to believe that Aguilar was driving while intoxicated. See Curtis, 238 S.W.3d at 381

(upholding reasonableness of traffic stop on similar facts); Gajewski v. State, 944 S.W.2d 450, 453

(Tex. App.—Houston [14th Dist.] 1997, no pet.) (concluding, on similar facts, that even though

driver might not have committed traffic offense did not mean that officer lacked reasonable suspicion

to believe driver was intoxicated).

               Aguilar argues that evidence of driving while intoxicated cannot supply the

reasonable suspicion required to make the traffic stop here because in his affidavit for warrant of

arrest and detention, Taub stated that he stopped Aguilar for the offense of failing to maintain a

single lane. She further argues that the record clearly shows that suspicion of driving while

intoxicated “was not a basis for [Taub’s] stopping [Aguilar].” As an initial matter, Aguilar cites no

authority for her contention that, when ruling on a motion to suppress, the trial court is limited to

considering only the ground stated in the officer’s affidavit for warrant of arrest and detention.

Rather, the test is whether the objective facts would have justified an officer in Taub’s shoes in

detaining Aguilar. See State v. Elias, 339 S.W.3d 667, 675 (Tex. Crim. App. 2011). The evidence,

including Taub’s testimony and the video from his dashboard camera, measured from an objective

standard, support the conclusion that there existed at least a reasonable suspicion that Aguilar was



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driving while intoxicated, justifying the stop. Moreover, Taub testified that he decided to make the

traffic stop based on both his observation of her failure to maintain a single lane and his suspicion

that she was driving while intoxicated. Accordingly, we cannot conclude that the trial court abused

its discretion in denying the motion to suppress. We overrule Aguilar’s sole issue on appeal.


                                         CONCLUSION

               We affirm the judgment of the trial court.



                                              _____________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Affirmed

Filed: March 2, 2012

Do Not Publish




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