                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-412-CR


MICHAEL JOHN KLEPPER                                            APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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   FROM THE COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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                                I. Introduction

     In one point, Appellant Michael John Klepper appeals his misdemeanor

conviction for driving while intoxicated (DWI). Klepper argues that the trial

court erred by denying his motion to suppress. We affirm.




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         … See Tex. R. App. P. 47.4.
                       II. Factual and Procedural History

      The only evidence that the trial court considered at Klepper’s suppression

hearing was North Richland Hills Police Officer D. Cullins’s offense report,

submitted into evidence by Klepper.2 The report contained the following facts:

•     On August 24, 2007, at about 12:40 a.m., Officer Cullins observed
      Klepper’s red 2005 Hummer H2 stopped at a red light in the middle of the
      intersection at Boulevard 26 and Harwood Road in Tarrant County,
      Texas;

•     “The vehicle had completely stopped past the limit line in the
      intersection[,] partially in the left turn lane and partially in the inside
      lane”;

•     Officer Cullins turned his patrol unit around and pulled up behind
      Klepper’s vehicle;

•     Klepper started backing up towards the patrol car and then turned left
      when the intersection light turned green; and

•     After Officer Cullins initiated a traffic stop, he stated in his report,
      “Subject admitted to being parked in the middle of the roadway and said
      he was waiting for [Officer Cullins’s] patrol car to pass b[y] him so he
      could move out of the intersection.”

      Officer Cullins’s report also stated that, upon approaching Klepper’s

vehicle, Officer Cullins smelled a strong odor of alcohol and observed that

Klepper had bloodshot, watery eyes and slurred speech.        Klepper informed


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       … After the trial court denied his motion to suppress, Klepper pleaded
guilty pursuant to a plea agreement but preserved his pretrial objections for
appeal. The trial court sentenced Klepper to forty days’ confinement and
ordered him to pay a $750 fine.

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Officer Cullins that he was driving home from Bellbottoms, a local bar, where

he had consumed three “Schooners.” After Klepper failed a field sobriety test,

Officer Cullins placed Klepper under arrest for DWI. Klepper refused requests

for breath or blood specimens.

                             III. Motion to Suppress

      In Klepper’s sole point, he contends that the trial court erred by overruling

his motion to suppress because there was insufficient evidence to support that

Officer Cullins reasonably believed that a traffic violation had occurred.

A. Standard of Review

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

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court’s decision, we do not engage in our own

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

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).             Therefore, we give almost total

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deference to the trial court’s rulings on (1) questions of historical fact, even if

the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);

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

application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      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, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When, as here, the record is silent on the reasons for

the trial court’s ruling, or when there are no explicit fact findings and neither

party timely requested findings and conclusions from the trial court, we imply

the necessary fact findings that would support the trial court’s ruling if the

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

those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App.

2008); see Wiede, 214 S.W.3d at 25. We then review the trial court’s legal

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ruling de novo unless the implied fact findings supported by the record are also

dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court

gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740

(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.

Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).

B. Applicable Law

      A police officer has the authority to stop and temporarily detain a driver

who has violated a traffic law. Armitage v. State, 637 S.W.2d 936, 939 (Tex.

Crim. App. 1982); Lemmons v. State, 133 S.W.3d 751, 756 (Tex. App.—Fort

Worth 2004, pet. ref’d). An automobile stop is justified when an officer has

reasonable suspicion to believe that a traffic violation has occurred. Goudeau

v. State, 209 S.W.3d 713, 716 (Tex. App.—Houston [14th Dist.] 2006, no

pet.). Reasonable suspicion exists if the officer has specific, articulable facts

which, combined with rational inferences from those facts, would lead him to

reasonably conclude that a particular person actually is, has been, or soon will

be engaged in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex.

Crim. App. 2007).




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      The rules of the road contained in the Texas Transportation Code require

the operator of a vehicle facing only a steady red signal to stop at a clearly

marked stop line.    Tex. Transp. Code Ann. § 544.007(d) (Vernon 2008).

Additionally, an operator of a vehicle may not stop, stand, or park in an

intersection. Id. § 545.302(a)(3) (Vernon 2008).

C. Analysis

      In Klepper’s sole point, he contends that the trial court erred by overruling

his motion to suppress.     Specifically, Klepper argues that although Officer

Cullins’s report stated that Officer Cullins had observed Klepper’s vehicle

stopped past the marked stop line and “partially in the left turn lane and

partially in the middle lane,” the report failed to state whether Officer Cullins

reasonably believed that these actions were violations of the traffic code and

further that these actions were, in fact, violations of the traffic code.       To

support his argument, Klepper directs our attention to State v. Tarvin, 972

S.W.2d 910 (Tex. App.—Waco 1998, pet. ref’d), and Ford v. State, 158

S.W.3d 488 (Tex. Crim. App. 2005).

      In Tarvin, the trial court found, and the appellate court agreed, that

touching the right-hand white line did not constitute weaving out of one’s lane.

Tarvin, 972 S.W.2d at 911–12. Such driving by Tarvin—which showed only

weaving within his own lane—did not provide reasonable suspicion of a traffic

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violation. Id. at 912. The evidence did not support a finding that the officer

had a reasonable belief that Tarvin had violated the Texas Transportation Code.

Id. Therefore, because there was no reasonable suspicion for a detention and

no evidence of a traffic violation, the court of appeals affirmed the trial court’s

suppression ruling. Id.

      In Ford, the officer stopped the vehicle for following another vehicle too

closely. Ford, 158 S.W.3d at 490. The statute in Ford—section 545.062(a)

of the Texas Transportation Code—lists factors to consider in determining a

violation, including the speed of the vehicles, traffic, the conditions of the

highway, and whether the driver could safely stop. Id. The officer’s statement

that he saw Ford “following too close” was held to be conclusory because there

was no testimony of objective facts or circumstances that would allow the

appellate court to determine whether the officer’s conclusion was objectively

reasonable. Id. at 493–94.

      Tarvin and Ford, however, are both distinguishable from the present case.

Here, the determination of a violation of sections 544.007(d) and 545.302(a)(3)

is not based on an officer’s subjective opinion.       On the contrary, Officer

Cullins’s statements that Klepper had stopped completely past the limit line at

a red light and that Klepper’s vehicle was parked in the middle of the

intersection, and Klepper’s own admission, documented in the report, that he

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had been parked in the middle of the roadway, were objective observations

upon which the trial court could have concluded Officer Cullins developed the

reasonable suspicion that Klepper had committed one or more traffic violations.

      Furthermore, Klepper’s contention—that there was no reasonable

suspicion because Officer Cullins failed to state in his report that he reasonably

believed that Klepper’s actions were violations of the law and failed to state the

exact provision Klepper had violated—is irrelevant, because we disregard any

subjective intent of the officer making the stop and look solely to whether an

objective basis for the stop exists. Garcia v. State, 43 S.W.3d 527, 530 (Tex.

Crim. App. 2001). The determination of the presence of reasonable suspicion

is a factual one and is made and reviewed by considering the totality of the

circumstances at the time of the stop. See id.; Icke v. State, 36 S.W.3d 913,

915 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). Therefore, viewing the

evidence in the light most favorable to the trial court’s ruling, we hold that the

trial court properly found that Officer Cullins had reasonable suspicion to stop

Klepper and furthermore that the trial court did not err by denying Klepper’s

motion to suppress. Accordingly, we overrule Klepper’s sole point.




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                            IV. Conclusion

     Having overruled Klepper’s sole point, we affirm the trial court’s

judgment.




                                      PER CURIAM

PANEL: MCCOY, J.; CAYCE, C.J.; and WALKER, J.

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

DELIVERED: February 12, 2009




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