                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     No. 07-12-00053-CR


                             MICHAEL SMITH, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                       On Appeal from the Criminal District Court No. 4
                                    Tarrant County, Texas
                Trial Court No. 1226093D, Honorable Elizabeth Berry, Presiding

                                    November 25, 2013

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


      Appellant Michael Smith appeals from his jury conviction of the offense of driving

a motor vehicle while intoxicated and the resulting sentence of fifty-five years of

imprisonment. He presents two issues. We affirm.


                                        Background


      Appellant was charged via an April 2011 indictment with operating a motor

vehicle in a public place while intoxicated.1 The indictment also included a habitual


      1
          TEX. PENAL CODE ANN. § 49.04 (West 2011).
offender notice, indicating appellant’s previous convictions for the same offense.

Appellant plead not guilty. He also filed a motion to suppress “any and all tangible

evidence seized by law enforcement officers.” After a pretrial hearing, the trial court

denied the motion.


       Appellant was arrested after Arlington Police Department officers stopped him as

he drove on Interstate 30 in heavy traffic between 4:00 and 5:00 in the afternoon. Their

attention was drawn to appellant by a 911 call from another motorist, Rebecca Huff,

who testified both at the suppression hearing and at trial.


       Huff testified at trial that at 4:15 on an afternoon in January 2011, she was driving

on I-30 between Dallas and Grand Prairie, Texas. She was nearly struck from behind

by a grey Chevrolet Astro Van. She watched as the van swerved in and out of traffic

several times, sped up and slowed down numerous times, and nearly hit another car.

She thought the driver might be intoxicated and called 911 to report what she saw.


       Officer Jessica Burns with the Arlington Police Department responded to the

dispatch. She saw the van and Huff’s car following it. Officer Burns followed the van,

and also noted indicators that the driver was intoxicated, including his activating the

van’s right turn signal and swerving into the lane to the right then back into his previous

lane; braking for no apparent reason; and driving about 40 miles per hour in a 60 mile-

per-hour zone at a time when heavy traffic was moving much faster. The officer also

saw a pick-up swerve to avoid the van when it started to move into the left-hand lane as

the truck was passing.


       Burns initiated a traffic stop, believing appellant was intoxicated and had

committed the offense of failing to maintain a single lane. When she approached the
                                             2
vehicle, she saw appellant alone in the van.             She noted the odor of alcohol on

appellant’s breath and his bloodshot eyes.             When questioned about his driving,

appellant told the officer he was tired and having problems with his van.


       A backup officer opened the sliding door of the van and a 24-ounce beer can fell

out of the van. Burns found another such can, about a quarter full, on the floor behind

the driver’s seat. It was cold to the touch.        Burns testified appellant balanced himself

against the van while waiting for officers. Burns also administered several standard

field sobriety tests, all of which appellant failed. The patrol car video was introduced

into evidence at trial and shown to the jury.


       Appellant was arrested and taken to the hospital. His blood was drawn and he

admitted to another officer he had consumed four to six 24-ounce cans of beer that day.

His blood test showed his blood alcohol concentration level was 0.24, an amount three

times the level for intoxication.


       Appellant was found guilty and punishment was assessed as noted. This appeal

followed.


                                         Analysis


       Appellant’s first issue challenges the sufficiency of the evidence to support his

conviction. In the second, he contends the trial court erred when it denied his motion to

suppress because his initial detention was not supported by reasonable suspicion. We

will begin with the suppression issue.




                                                3
Motion to Suppress


       In his motion to suppress, appellant challenges the officer’s reasonable suspicion

that he was committing any offense, her detention of him, and the search that led to the

seizure of the two 24-ounce cans of beer. Huff, the 911 caller, testified at the

suppression hearing, along with two police officers. After denying appellant’s motion,

the court issued detailed findings of fact and conclusions of law.


       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). 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. 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."

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). 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 a trial court makes explicit fact findings, as it did here, the appellate court

determines whether the evidence, when viewed in the light most favorable to the trial

court's ruling, supports these fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex.

Crim. App. 2006); Figueroa v. State, 250 S.W.3d 490, 508 (Tex. App.—Austin 2008,

pet. ref'd). We then review the trial court's legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling. Kelly,

204 S.W.3d at 818; Figueroa, 250 S.W.3d at 508.
                                             4
       An officer may initiate a traffic stop if she reasonably suspects that the driver has

violated the law. 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 her 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.


       The transportation code as applicable here provides a 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.” TEX. TRANSP. CODE ANN. § 545.060(a) (West

2011); Fowler v. State, 266 S.W.3d 498, 504-05 (Tex. App.—Fort Worth 2008, pet.

ref’d). The trial court found that Officer Burns possessed facts leading reasonably to a

suspicion appellant had violated this provision of the transportation code. The record

supports the trial court’s explicit finding. Huff testified she told the 911 dispatcher she

saw appellant’s vehicle swerving in and out of his lane of traffic, almost hitting other

vehicles.   Burns testified to her observations after she pulled in behind appellant’s

vehicle in response to the 911 call. The officer told the court that as she followed

appellant’s vehicle, “[h]e then went over to the left-hand lane where he almost hit a

pickup truck, at which time I initiated my overhead lights.” The patrol car video, shown at

the hearing, supports her testimony.      The trial court did not abuse its discretion in

finding Officer Burns had a reasonable suspicion appellant committed the traffic offense

of failure to maintain a single lane.


                                             5
       A person commits the offense of driving while intoxicated if he is intoxicated while

operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West

2011). Testimony at the suppression hearing was to the effect appellant was driving

erratically and nearly hit several vehicles. Officer Burns testified to her training and

experience and noted her observations of appellant that lead her to believe appellant

was operating his van while intoxicated. The court also heard Huff’s opinion appellant

was intoxicated. In its findings of fact and conclusions of law, the trial court concluded

Burns possessed a reasonable suspicion that appellant was committing the offense of

driving while intoxicated based on the totality of the conduct she observed, her training

and experience, and the conduct that had been reported to the dispatcher. The record

supports the trial court’s finding. For both those reasons, the officer’s traffic stop and

detention of appellant were supported by a reasonable suspicion of his violation of law.


       As noted, appellant’s motion to suppress also challenged the officer’s retrieval of

the two 24-ounce beer cans. The trial court included in its findings of fact the officer’s

observations of appellant at the time she stopped him and his failure of each of the field

sobriety tests. The court’s findings include the fact that officers found the two beer cans

in plain view in the van. See Deaver v. State, 314 S.W.3d 481, 485 (Tex. App.—Fort

Worth 2010, no pet.) (no invasion of expectation of privacy when contraband is in “plain

view” and observed by a police officer from a lawful vantage point). See also Harper v.

State, 349 S.W.3d 188, 192 (Tex. App.—Amarillo 2011, pet. ref’d) (noting when a

police officer stops a car based on a reasonable suspicion the driver is intoxicated,

smells odor of alcohol, has probable cause to believe open alcoholic beverage

containers in the car, probable cause exists for officer to search the vehicle for open

containers in the car). The record supports the findings of the trial court.
                                             6
       The trial court ultimately concluded “[a]ll evidence in this case was obtained

lawfully.”    The record, which we have summarized but which contains considerably

more detail, supports this conclusion. The trial court did not abuse its discretion in

denying the motion to suppress. We overrule appellant’s second issue.


Sufficiency of the Evidence


       The Texas Court of Criminal Appeals has held that the Jackson v. Virginia2 legal

sufficiency standard is the only standard a reviewing court should apply when

determining whether the evidence supports the elements of a criminal offense that the

state is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d

893, 894-95 (Tex. Crim. App. 2010).3


       The standard for reviewing a sufficiency challenge is whether any rational trier of

fact could have found the essential elements of the offense beyond a reasonable doubt.

Jackson, 443 U.S. at 320. The evidence is examined in the light most favorable to the

verdict. Id. This standard gives full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from the basic facts to ultimate facts. Id. at 319.


       As noted, a person commits the offense of driving while intoxicated if he is

intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. §

49.04(a) (West 2011). "Intoxicated" is defined as "not having the normal use of mental

       2
           Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
       3
         Appellant’s brief discusses the evidence under both this standard and the
formerly-applied factual sufficiency standard. We will not independently consider
appellant's argument challenging the factual sufficiency of the evidence.
                                               7
or physical faculties by reason of the introduction of alcohol . . . into the body" or "having

an alcohol concentration of 0.08 or more." TEX. PENAL CODE ANN. § 49.01(2)(A), (B)

(West 2011).


       Appellant generally argues the evidence was insufficient to support his

conviction. In her trial testimony, Huff told the jury appellant almost hit her as they

drove the same direction on the interstate, his van was swerving from side to side and

nearly hit another vehicle in another lane, he slammed on his brakes, and sped up and

slowed down repeatedly. She also testified she saw the driver and noticed he “looked

droopy, his face and his body over the wheel kind of.” She called 911, believing the

driver was intoxicated.


       Burns also told the jury of her training and experience. She testified that she

responded to the dispatch and located the cars described. When she encountered

appellant, he was driving about 40 miles per hour, much slower than the surrounding

traffic. Consistent with her suppression hearing testimony, she told the jury the van

drifted into the left-hand lane and almost hit a pick-up truck. The officer then initiated

the traffic stop because she believed the driver was intoxicated and had committed the

offense of failing to maintain a single lane.


       When the officer approached appellant, she noted the odor of alcohol and

bloodshot eyes. She and a backup officer noted two 24-ounce cans of beer in the van

and noticed appellant braced himself against the van when he stepped out. Burns

testified she administered field sobriety tests, all of which appellant failed. She testified

to her opinion appellant was intoxicated. The jury learned that after appellant’s arrest

he was taken to a hospital, where a blood draw showed his blood alcohol concentration
                                                8
was 0.24. Appellant also admitted to another officer he had consumed four to six 24-

ounce cans of beer that day.


       Based on our review of the evidence presented to the jury, we conclude the fact

finder reasonably could have found each essential element of the offense beyond a

reasonable doubt. Jackson, 443 U.S. at 320. We resolve appellant’s first issue against

him, and affirm the judgment of the trial court.




                                                   James T. Campbell
                                                       Justice


Do not publish.




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