     Case: 10-51034     Document: 00511548392         Page: 1     Date Filed: 07/22/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 22, 2011
                                     No. 10-51034
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CARLOS DAVID JACOBO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:10-CR-202-3


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Carlos David Jacobo pleaded guilty to possession with intent to distribute
marijuana, and he was sentenced to 24 months of imprisonment and five years
of supervised release.
        Jacobo argues on appeal that the district court erred in denying his motion
to suppress evidence obtained as a result of his detention and arrest after a
traffic stop based on his violation of a Texas statute prohibiting driving on the
shoulder of a road, with certain exceptions. He contends that the stop was

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-51034    Document: 00511548392       Page: 2    Date Filed: 07/22/2011

                                   No. 10-51034

unconstitutional under Terry v. Ohio, 392 U.S. 1 (1968), because there was little
credible evidence of the violation other than the testimony at the suppression
hearing of the officer initiating the traffic stop, and he further asserts without
providing any evidence or argument in support of his assertion that “even if he
momentarily swerved across the line, which he denies, he by no means ‘drove’
on the shoulder.” Jacobo also argues that the officer’s additional testimony
concerning marijuana seizures and the presence of illegal aliens in the area did
not justify the traffic stop and that the officer intended to pull him over even
before the alleged traffic violation occurred.
      The district court determined that the officer’s testimony that Jacobo had
driven on the shoulder of the road in violation of the Texas Transportation Code
was credible, and Jacobo’s mere assertion without any supporting evidence that
he did not in fact swerve across the line on the shoulder does not demonstrate
that the district court’s finding that a traffic violation occurred was not plausible
in light of the record as a whole. See United States v. Gomez, 623 F.3d 265, 268
(5th Cir. 2010); TEX. TRANSP. CODE ANN . § 545.058(a) (Vernon 1999). The
existence of a traffic violation justified the stop of Jacobo’s vehicle, regardless of
whether the officer had another motive for the stop. See Whren v. United States,
517 U.S. 806, 810, 813 (1996). Accordingly, Jacobo has not shown that the
district court erred in denying his motion to suppress. See United States v.
Navarro, 169 F.3d 228, 231 (5th Cir. 1999).
      AFFIRMED.




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