                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-12-00005-CR


                             MICHU MINOR, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 47th District Court
                                    Potter County, Texas
                Trial Court No. 60,228-A, Honorable Dan L. Schaap, Presiding

                                   November 14, 2013

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant Michu Minor appeals his conviction for possessing five pounds or less

but more than four ounces of marijuana.1 After finding appellant guilty, a jury assessed

punishment at two years‟ confinement in a state jail with a fine of $10,000.          It

recommended suspension of the sentence of incarceration and imposition of community

supervision. The trial court sentenced appellant according to the jury‟s verdict. On


      1
          TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(3) (West 2010).
appeal, appellant contends the trial court abused its discretion by denying his pre-trial

motion to suppress evidence seized by a Texas Department of Public Safety trooper.

Finding no error by the trial court, we will overrule appellant‟s issue and affirm the

judgment.


                                       Background


      On July 4, 2010, the trooper was patrolling Interstate 40 near Amarillo.

Approaching the city from the west, he overtook a vehicle driven by appellant. The

trooper activated the video and audio recorder in his vehicle and the trial court viewed

the recording before ruling on appellant‟s suppression motion.2


      According to the trooper he followed appellant for approximately three miles on

the interstate. Along the way, he observed appellant weaving within his lane. The

speed of appellant‟s vehicle was about seven to eight miles per hour below the posted

limit. The trooper also observed appellant leaning over the steering wheel as he drove.

The trooper did not activate his vehicle‟s emergency lights or otherwise direct appellant

to pull over. Rather, he continued following as appellant exited the interstate on the

west side of Amarillo and parked in a restaurant parking lot.


      The trooper positioned his vehicle at an angle to the side and rear of appellant‟s

vehicle. The trooper was in uniform with a holstered weapon. As he approached, the

trooper‟s first words to appellant were, “Texas Highway Patrol. Sir you haven‟t been

drinking or anything today have you? Sir I followed you all the way back in and you

were weaving within the lanes and everything else.”
      2
          The State played a portion of the video during the hearing and the trial court
stated it would view the entire video before ruling on the motion.

                                            2
         While inquiring about appellant‟s driver‟s license and trip information the trooper

noticed marijuana “shake” or residue on the floorboard of appellant‟s vehicle. He also

smelled burnt marijuana on appellant‟s person and the odor of raw marijuana inside

appellant‟s vehicle.


         Appellant gave the trooper permission to search his vehicle and watched the

procedure while seated on a nearby curb.              Within a speaker box in the rear of

appellant‟s vehicle, the trooper discovered several bundles of marijuana. 3 A pistol was

also found. Appellant was arrested for possession of the contraband.


         Prior to trial, appellant sought suppression of evidence seized in the search of his

vehicle. The hearing on appellant‟s motion focused on whether the trooper detained

appellant without reasonable suspicion to conduct an investigative detention or whether

the contact with appellant in the restaurant parking lot was merely a consensual

encounter with probable cause latter attaching when the trooper saw the marijuana

shake in the vehicle. By written order, the trial court denied appellant‟s motion without

explanation. Written findings of fact and conclusions of law were neither requested nor

filed.


                                           Analysis


         Through a single issue on appeal, appellant argues the trial court erred because

the evidence showed the trooper conducted an investigative detention while lacking

reasonable suspicion that crime was afoot.


         3
          According to the trial testimony of a Department of Public Safety forensic
scientist, the bundled substance submitted for analysis amounted to 3.90 pounds of
marijuana.

                                              3
       A trial court‟s ruling on a motion to suppress is reviewed for abuse of discretion.

Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). In a suppression hearing,

the trial court is the sole judge of the credibility of the witnesses and the weight given

their testimony. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000). We

afford almost total deference to the trial court‟s determination of historical facts.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Thus, we afford the

prevailing party in the trial court the “strongest legitimate view of the evidence and all

reasonable inferences that may be drawn from that evidence.” State v. Garcia-Cantu,

253 S.W.3d 236, 241 (Tex. Crim. App. 2008).           However, detention and reasonable

suspicion are by nature legal concepts and are properly subject to de novo review.

Hunter v. State, 955 S.W.2d 102, 107 (Tex. Crim. App. 1997); Sanders v. State, 992

S.W.2d 742, 744 (Tex. App.—Amarillo 1999, pet. ref‟d). Accordingly, for purposes of a

Fourth Amendment analysis we give appropriate deference to the trial court‟s

determination of historical facts, but we review the decision of the trial court de novo as

to whether the historical facts, viewed from the standpoint of an objectively reasonable

person so situated as was the police officer, amount to “reasonable suspicion” justifying

an investigatory detention. Ornelas v. United States, 517 U.S. 690, 697-99, 116 S.Ct.

1657, 134 L.Ed.2d 911 (1996); Guzman, 955 S.W.2d at 89. When, as here, no findings

of fact were requested nor filed, we review the evidence in the light most favorable to

the trial court‟s ruling and assume the trial court made implicit findings of fact supported

by the record. See Ross, 32 S.W.3d at 855. We will sustain the decision of the trial

court if it is correct under any theory applicable to the case. Id. at 855-56.




                                              4
       We will assume, but do not decide, that the trooper‟s initial contact with appellant

in the restaurant parking lot was an investigative detention and not a consensual

encounter.4 But this assumption does not of itself impugn the order of the trial court.

We think resolution of the appellate issue is governed by a determination whether, when

the trooper initially contacted appellant, he possessed specific and articulable facts

which, along with rational inferences drawn therefrom, gave rise to a reasonable

suspicion that appellant was driving while intoxicated.


       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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An

investigatory detention is reasonable, and therefore constitutional, if (1) the officer‟s

action was justified at the detention‟s inception; and (2) the detention was reasonably

related in scope to the circumstances that justified the interference in the first place.

Terry, 392 U.S. at 19-20. Under the first prong of Terry, the officer “must be able to

point to specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant that intrusion.” 392 U.S. at 21. The officer must have a

“reasonable suspicion that some activity out of the ordinary is occurring or has occurred,

some suggestion to connect the detainee with the unusual activity, and some indication


       4
          Three specific types of interaction occur between law enforcement and citizens:
(1) consensual encounters; (2) investigatory detentions; and (3) arrests. State v.
Woodard, 341 S.W.3d 404, 410-11 (Tex. Crim. App. 2011). The protections of the
Fourth Amendment are not implicated by a consensual encounter. Id. at 411. The
totality of circumstances surrounding the interaction determines whether a reasonable
person in the defendant‟s shoes would feel free to ignore the request or terminate the
interaction. Id. But the conduct of the officer is the most important factor in deciding
whether the interaction was consensual or implicated the protections of the Fourth
Amendment. Id.

                                             5
that the unusual activity is related to crime.” Davis v. State, 947 S.W.2d 240, 244 (Tex.

Crim. App. 1997) (citing Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983)).

“The second prong of Terry deals with the scope of the detention. . . . [A]n investigative

detention, „like any other search, must be strictly circumscribed by the exigencies which

justify its initiation.‟” Id. at 243 (quoting Terry, 392 U.S. at 25-26).


       Erratic or unsafe driving may furnish a sufficient basis for a reasonable suspicion

that the driver is intoxicated.    Finley v. State, No. 06-10-00218-CR, 2011 Tex.App.

LEXIS 9965, at *12-13 (Tex. App.—Texarkana Dec. 20, 2011, pet. ref‟d) (mem. op., not

designated for publication) (holding trial court could have found “that weaving within a

lane and making an unusually wide turn during the night hours would objectively lead a

reasonable officer to conclude that [defendant] was not under the full control of his

faculties due to intoxication”); State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.—Waco

1998, pet. ref‟d) (opining that weaving in one‟s own lane can justify investigatory stop

when weaving is erratic, unsafe, or tends to indicate intoxication); Fox v. State, 900

S.W.2d 345, 347 (Tex. App.—Fort Worth 1995), pet. dism’d, improvidently granted, 930

S.W.2d 607 (Tex. Crim. App. 1996) (holding officer‟s observation of speed of

defendant‟s vehicle fluctuating between forty and fifty-five mph and weaving within

defendant‟s lane provided sufficient specific facts creating reasonable suspicion that

activity out of ordinary was occurring or had occurred). Reasonable suspicion justifying

a traffic stop may arise even absent a violation of a traffic regulation. See State v.

Alderete, 314 S.W.3d 469, 473 (Tex. App.—El Paso 2010, pet. ref‟d) (police officers

trained to detect persons driving while intoxicated had reasonable suspicion to stop

driver suspected of driving while intoxicated after observing driver continuously


                                                6
swerving within a lane for a distance of one-half mile, even though driver did not violate

any traffic regulations); Cook v. State, 63 S.W.3d 924, 929 (Tex. App.—Houston [14th

Dist.] 2002, pet. ref‟d) (holding while erratic driving may not have constituted a traffic

violation, it may provide reasonable suspicion that driver was driving while intoxicated);

McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App—Fort Worth 2001, pet. ref‟d)

(explaining that State was not required to prove defendant violated traffic law even if

officer‟s testimony failed to establish reasonable suspicion that defendant violated traffic

law, it raised sufficient facts justifying stop based on reasonable suspicion of

defendant‟s intoxication); Gajewski v. State, 944 S.W.2d 450, 453 (Tex. App.—Houston

[14th Dist.] 1997, no pet.) (finding that although the defendant‟s driving may not have

constituted a traffic violation, that did not negate a stop based on reasonable suspicion

of defendant‟s intoxication).


       At the hearing, the trooper testified he had worked eight years for DPS and was

then assigned to the drug section in the criminal investigation division. Concerning the

occurrence in question, the trooper testified, and the video depicts, appellant‟s vehicle

weaving within the lane of traffic. According to the trooper, appellant leaned over the

steering wheel and drove below the posted speed limit. The date was July 4. The

trooper factored the date in his assessment of the circumstances because in his

experience intoxicated drivers are frequently seen on a holiday weekend. See List v.

State, No. 04-00-00406-CR, 2001 Tex.App. LEXIS 127, at *3-4 (Tex. App.—San

Antonio, Jan. 10, 2001, no pet.) (not designated for publication) (affirming conviction of

defendant for driving while intoxicated and noting officer considered holiday season as a

factor for his suspicion); cf. Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App.


                                             7
2010) (noting time of day is a relevant factor in determining reasonable suspicion). The

trooper testified he suspected appellant might be driving while intoxicated. Based on

the totality of the circumstances and viewing the evidence in the light most favorable to

the trial court‟s determination, we hold that there was an objective basis for reasonable

suspicion that appellant was driving while intoxicated. And reasonable suspicion to

detain appellant existed at the inception of the trooper‟s contact with appellant in the

restaurant parking lot. Accordingly, the trial court did not abuse its discretion in denying

appellant‟s motion to suppress. Appellant‟s sole issue is overruled.


                                        Conclusion


       Having overruled appellant‟s issue, we affirm the judgment of the trial court.




                                                        James T. Campbell
                                                            Justice




Do not publish.




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