                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-370-CR


KERRY KENT HUGHES                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

                                   ------------

     FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

     Appellant Kerry Kent Hughes appeals from the trial court’s denial of his

motion to suppress. We affirm.

                                 Background

     While on patrol on January 12, 2007 around 2:00 a.m., Officer Scott

Williamson of the University of North Texas Health Science Center (UNTHSC)




     1
         … See Tex. R. App. P. 47.4.
in Fort Worth noticed a car driving “real slow” on Arch Adams.2 It was going

“[w]ay under the speed limit,” about fifteen miles/hour on a thirty mile/hour

street, as if the driver was “confused of where he was going or what road he

was on.” There were “a few” other cars on the road that morning, and the

driver of the car he noticed was driving significantly slower than those cars.

Officer Williamson started following the car and noticed that the driver was

having a hard time maintaining a single lane of travel and was “breaking the

point of the lane.” As the officer was following the car, the driver turned onto

Camp Bowie and almost struck the far left curb of the lane “and then kind of

bounced back into the right lane.” In response to a question from the State,

Officer Williamson testified that he thought at the time the driver had

committed a traffic offense, but he learned later that the driver did not, in fact,

commit any traffic offense. However, Officer Williamson testified that he also

thought the driving was unusual.       After Officer Williamson turned on his

overhead light to initiate a stop, the driver, later identified as appellant, kept


      2
        … A campus police officer has primary jurisdiction in “all counties in
which property is owned, leased, rented, or otherwise under the control of the
institution of higher education or public technical institute that employs the
peace officer.” Tex. Educ. Code Ann. § 51.203(a) (Vernon 2006). Officer
Williamson testified that his chief has limited the UNTHSC officers’ jurisdiction
to one square mile all the way around the campus. Appellant did not and has
not contended that the events upon which his motion to suppress is based
occurred outside of Officer Williamson’s jurisdiction.

                                        2
driving for several blocks without braking before pulling over.               Officer

Williamson testified that at that time, he was suspicious of the driver because

“at that time of the morning bars are closing, somebody that can’t drive in a

single lane, almost striking a curb, it was my impression that the vehicle could

have been - - or the driver of the vehicle could have been under influence or

drugs, or something to that nature.” Upon further questioning by the State,

Officer Williamson testified that he was trained at the police academy to detect

signs that a person may be driving while intoxicated, that appellant showed

signs of intoxication the night he stopped him, and that those signs were,

specifically, “[f]ailure to maintain a single lane, drifting from lane to lane, almost

striking curbs.” In response to the question, “Were you taught in the police

academy that if a person is driving well under the speed limit that that may . . .

be a sign that they are intoxicated?,” Officer Williamson answered, “Yes.”

      On cross-examination, appellant’s counsel asked Officer Williamson if he

had his report with him, and Officer Williamson handed him the document.

When appellant’s counsel asked if it was the entire report Officer Williamson

had prepared, he said, “No, sir. That is just the DWI case report . . . . That’s

not the whole incident report.” Officer Williamson stated that it was part of the

report but not all of the documentation. But he agreed when counsel asked,

“Would this . . . 11-page report . . . contain all the information that you

                                          3
recorded regarding your contact with [appellant] that night as far as the reason

for the stop and then the field sobriety evaluations?” He agreed that the report

contained a detailed paragraph entitled “Probable Cause.” 3 He agreed that at

the police academy he was trained to put everything in a report that is pertinent

to a stop and arrest, i.e., “[a]s much as you - - what you need to put in.”

Officer Williamson admitted that he wrote in his report that he pulled over

appellant for “failure to maintain a single lane of travel” and that he did not

write that he thought appellant might be intoxicated.4 He agreed that he could

have written that the reason for the stop was intoxication “if that would have

been the reason for the stop” (in the words of appellant’s counsel).       When

counsel asked if “the truth is the reason for the stop was that failure to

maintain a single lane of travel,” Officer Williamson answered, “Correct.”

                                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



      3
          … Regardless, the report was not admitted into evidence at the hearing.
      4
       … Officer Williamson also agreed that he followed appellant only for a
short period of time over several blocks.

                                         4
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

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

                                         5
(Tex. Crim. App. 2006). When 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. Id.; see Amador, 221 S.W.3d at 673; Wiede, 214 S.W.3d at

25. We then review the trial court’s legal 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).

      In a motion to suppress hearing, the trial court may believe or disbelieve

all or any part of a witness’s testimony, even if that testimony is not

controverted, because the trial court observes first hand the demeanor and

appearance of a witness, as opposed to an appellate court, which can only read

an impersonal record. Ross, 32 S.W.3d at 855.

                                Issue on Appeal

                                        6
      In a single issue, appellant challenges the trial court’s denial of his motion

to suppress. Specifically, he contends that the stop was invalid and without

reasonable suspicion because Officer Williamson conceded that the sole reason

he pulled over appellant was because he thought appellant committed the

offense of failure to maintain a single lane of travel when, in fact, he had not.

The State contends that regardless of what the officer’s subjective belief was,

he articulated specific facts from which the trial court could have determined

that he had reasonable suspicion to stop appellant.

                          Applicable Law and Analysis

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on

specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868,

1880 (1968); Carmouche, 10 S.W.3d at 328. An officer conducts a lawful

temporary detention when he or she has reasonable suspicion to believe that

an individual is violating the law.    Ford, 158 S.W.3d at 492.        Reasonable

suspicion exists when, based on the totality of the circumstances, the officer

has specific, articulable facts that when combined with rational inferences from

those facts, would lead him to reasonably conclude that a particular person is,

has been, or soon will be engaged in criminal activity. Id. at 492–93. This is

an objective standard that disregards any subjective intent of the officer making

                                         7
the stop and looks solely to whether an objective basis for the stop exists. Id.

at 492. Because the trial court here did not file findings of fact and conclusions

of law, we must determine whether the evidence, viewed in the light most

favorable to the trial court’s decision to deny the motion to suppress, supports

implied findings supporting that decision, in other words, whether Officer

Williamson testified to specific, articulable facts justifying his detention of

appellant. See Kelly, 204 S.W.3d at 819.

      Appellant’s argument essentially urges this court to judge the validity of

the stop based upon Officer Williamson’s mistaken subjective belief that

appellant committed a traffic violation. At oral argument, appellant contended

that even though Officer W illiamson testified that he thought appellant was

intoxicated based upon his training and the specific instances of unusual driving

he observed, the fact that Officer Williamson did not include this information

in his report written at the time of the offense shows that he was being

untruthful.

      However, the trial court obviously believed Officer Williamson’s

testimony, and we must defer to its assessment of Officer Williamson’s

credibility.   Ross, 32 S.W.3d at 855.      Thus, we must take as true Officer

Williamson’s testimony that he also thought at the time that appellant could

have been intoxicated based upon his training and the specific instances of

                                        8
driving he observed. See Curtis v. State, 209 S.W.3d 688, 694–95 (Tex.

App.—Texarkana 2006) (reversing trial court’s denial of motion to suppress and

noting that officer testified that he had reasonable suspicion appellant was

intoxicated but his report stated that only reason for stopping appellant was

that appellant committed traffic violation of weaving), rev’d, 238 S.W.3d 376,

380–81 (Tex. Crim. App. 2007) (holding that court of appeals failed to consider

officers’ testimony that provided specific, articulable facts justifying reasonable

suspicion that appellant was intoxicated).     And, as stated above, we must

determine reasonable suspicion based upon an objective standard considering

the totality of the circumstances, not upon the officer’s subjective intent in

making the stop. Ford, 158 S.W.3d at 492–93. Thus, we must determine

whether the objective facts testified to by Officer Williamson show that he had

reasonable suspicion to justify stopping appellant, regardless of the sole reason

stated in his report. Curtis, 238 S.W.3d at 380–81.

      Here, Officer Williamson observed appellant driving well below the speed

limit and slower than other cars on the road around 2:00 a.m. when the bars

were closing. Officer Williamson testified that he had been trained that slow

driving was a possible sign of intoxication.      Appellant was having trouble

driving the car within a single lane of traffic, and as Officer Williamson followed

him, appellant turned and almost ran into the left hand curb. Appellant then

                                        9
apparently overcorrected and “kind of bounced back into the right lane.” We

conclude and hold that Officer Williamson testified to specific, articulable facts

that would lead a reasonable person to conclude that the driver of the car was

possibly driving while intoxicated.5 See id.; James v. State, 102 S.W.3d 162,

172 (Tex. App.—Fort Worth 2003, pet. ref’d). Therefore, we cannot say that

the trial court erred by denying appellant’s motion to suppress. We overrule

appellant’s sole issue.

                                    Conclusion

      Having overruled appellant’s sole issue, we affirm the trial court’s

judgment.


                                                    TERRIE LIVINGSTON
                                                    JUSTICE


PANEL: LIVINGSTON, WALKER, and MCCOY, JJ.

MCCOY, J. filed a dissenting opinion.

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


      5
        … These facts distinguish this case from Fowler, in which the facts
testified to by the officer initiating the traffic stop, even if believed by the trial
court, were not sufficient to establish reasonable suspicion of either DWI or a
violation of section 545.060(a) of the Texas Transportation Code. Fowler v.
State, No. 02-06-00183-CR, 2008 WL 3540288, at *1–2 (Tex. App.—Fort
Worth Aug. 14, 2008, pet. filed) (en banc).

                                         10
DELIVERED: November 20, 2008




                               11
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-07-370-CR


KERRY KENT HUGHES                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

                                    ------------

      FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY

                                    ------------

                          DISSENTING OPINION

                                    ------------

      I respectfully dissent. A review of Officer Williams’s testimony reveals

that at no time did he testify that he stopped Hughes’s vehicle because he

suspected an intoxicated driver was at the wheel. In fact, he unequivocally

testified that the reason, as opposed to one of the reasons, that he stopped the

car was the failure to maintain a single lane of travel. He also testified that he

learned after the stop that the driver did not commit any traffic offense.

      As this court has recently observed in Fowler v. State,
             An officer’s reasonable suspicion of an alleged traffic
      violation cannot be based on a mistaken understanding of traffic
      laws. United States v. Granado, 302 F.3d 421, 423 (5th Cir.
      2002); Goudeau v. State, 209 S.W.3d 713, 716 (Tex.
      App.—Houston [14th Dist.] 2006, no pet.). And an officer’s
      honest but mistaken understanding of the traffic law which
      prompted a stop is not an exception to the reasonable suspicion
      requirement. Goudeau, 209 S.W.3d at 716. Thus, Officer
      Knotts’s misunderstanding that section 545.060(a) requires only
      crossing of the lane line—regardless of whether it is unsafe or
      dangerous to do so—will not support a reasonable suspicion.

             McQuarters and the other cases cited by the State do not
      change this result. McQuarters cites Garcia for the proposition that
      “the State was not required to prove appellant violated a traffic
      law. The State only needed to elicit testimony that [the police
      officer] knew sufficient facts to reasonably suspect that appellant
      had violated a traffic law.” 58 S.W.3d at 255. In the relevant
      portion of Garcia, the court of criminal appeals stated that “[t]he
      State is correct that it need not establish with absolute certainty
      that a crime has occurred in order to show reasonable suspicion.”
      43 S.W.3d at 530. Neither case holds or even suggests that an
      officer’s ignorance of the law will somehow satisfy the Fourth
      Amendment and rise to the level of reasonable suspicion. To so
      hold would transform the Fourth Amendment’s objective standard
      into a subjective standard dependent on the whims of the police’s
      “understanding” of the law.

Fowler v. State, No. 02-06-00183-CR, 2008 WL 3540288, at *5 (Tex.

App.—Fort Worth Aug. 14, 2008, pet. filed) (en banc).

      Therefore, I would hold, as the majority held in Fowler, that there was no

reasonable suspicion for the initial stop and that the trial court erred in failing

to suppress the evidence developed during the stop.




                                        2
                                   BOB MCCOY
                                   JUSTICE

DELIVERED: November 20, 2008




                               3
