Affirmed and Majority and Dissenting Opinions filed December 5, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00062-CR

                     ERICK LIONEL MILLER, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 221st District Court
                          Montgomery County, Texas
                    Trial Court Cause No. 12-04-04401-CR

                     MAJORITY                 OPINION
      Appellant pleaded guilty to possession with intent to deliver or manufacture
a controlled substance. Before his guilty plea, appellant filed a motion to suppress
evidence on grounds that the traffic stop was made without reasonable suspicion of
criminal activity. The trial court denied appellant’s motion to suppress. In two
issues, appellant challenges the trial court’s ruling; he contends that (1) his Fourth
Amendment rights were violated when a police officer stopped his vehicle without
reasonable suspicion of criminal activity1; and (2) the police officer was not acting
in his community-caretaking capacity when he stopped the vehicle. We affirm.

                                          BACKGROUND

      Officer Kevin Cooke, who was working with the Montgomery County
Precinct 4 Constable’s Office at the time, was patrolling U.S. Highway 59 when he
observed a vehicle traveling northbound in the center lane of traffic. He observed
the vehicle begin to straddle the divider line between the center lane and the left
lane of traffic. Based upon his training and approximately twenty-one years of law
enforcement experience, Cooke “conducted a traffic stop on the vehicle to check
the welfare of the driver.” Cooke testified he observed the vehicle fail to maintain
a single lane for several hundred feet before stopping the vehicle. The video taken
from Cooke’s vehicle camera confirms that the vehicle straddled the lane-marker
for several hundred feet. Because the details of Cooke’s testimony are crucial to
our determination of the validity of the traffic stop, we cite verbatim the following
relevant excerpts:

      [Prosecutor] Q. All right. Well, just give us an idea — just so the
      record’s clear, why did you stop this vehicle?
      [Cooke] A. To check the welfare of the driver.
      Q. And why did you need to check the — believe you needed to check
      the welfare of the driver?
      A. Because the driver’s operating a motor vehicle in a public roadway
      with other vehicles on the roadway as well and the vehicle is crossing
      over the line. And that could be an indicator of someone falling
      asleep, intoxicated, overmedicated.
      Q. Okay. And have you in the course of your experience often
      encountered folks that did the same thing that [the driver] did that, in
      fact, were based on your experience intoxicated, sleepy,
      overmedicated, drowsy, whatever?
      1
          It is undisputed this was a warrantless traffic stop.

                                                   2
      A. Yes.
      Q. Unfit to operate a motor vehicle safely on our highways?
      A. Yes, sir.

On cross-examination:

      Q. Okay. Now, the — the primary reason or, I guess, what you told
      Mr. Freyer is the reason you pulled this young lady over is for what
      we call community caretaking. Correct?
      A. Yes, sir.
      Q. Okay. You wanted to check the welfare of the driver and/or the
      passengers in the vehicle, correct?
      A. The driver. Yes, sir.
      Q. Okay. And you want to make sure if they were sleepy or
      intoxicated or make sure nothing was going wrong in the vehicle.
      A. To make sure they were okay to continue on their journey. Yes, sir.

                                       ***

      Q. Okay. And your concern for their safety for — the concern was
      you wanted to make sure the driver wasn’t sleepy. That was one of
      the reasons, right?
      A. Right.
      Q. To see if the driver might be intoxicated?
      A. Correct.
      Q. Or had some other kind of physical ailment that you might want to
      check on. Correct?
      A. Right. Sleepy, intoxicated, overmedicated.

      After Cooke stopped the vehicle, the occupants gave conflicting stories
about where they had been, how long they had been there, and where they were
going. After searching the vehicle, Cooke found approximately eleven ounces of
cocaine hidden in the vehicle’s spare tire. The driver and two passengers were

                                         3
arrested for possession with intent to deliver.

       Appellant, who was one of the passengers, filed a motion to suppress the
evidence on the grounds that Cooke did not have reasonable suspicion to stop the
vehicle. After a hearing, the trial court denied appellant’s motion. On appeal,
appellant claims that the initial stop of the vehicle was illegal, and therefore any
evidence obtained as a result of the stop should have been suppressed.

                                  STANDARD OF REVIEW

       When reviewing a trial court’s ruling on a motion to suppress, an appellate
court applies an abuse of discretion standard and overturns the trial court’s ruling
only if it is outside the zone of reasonable disagreement. Martinez v. State, 348
S.W.3d 919, 922 (Tex. Crim. App. 2011). We use a bifurcated standard of review,
giving almost total deference to a trial court’s determination of historic facts and
mixed questions of law and fact that rely upon the credibility of a witness; we
apply a de novo standard of review to pure questions of law and mixed questions
that do not depend on credibility determinations. Id. at 922–23.

       The reviewing court views the evidence in the light most favorable to the
trial court’s ruling. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App.
2007). In a suppression hearing, the trial court is the sole trier of fact and judge of
the credibility of the witnesses and the weight to be given their testimony. State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). If the trial court makes no
explicit findings of fact, we imply fact findings to support the court’s ruling when
the evidence supports the implied findings. Gutierrez, 221 S.W.3d at 687.2 We
“must uphold the trial court’s ruling if it is reasonably supported by the record and
       2
         This case was transferred to the Fourteenth Court of Appeals from the Ninth Court of
Appeals in Beaumont; we apply transferor court’s precedents if there is a conflict. Tex. R. App.
P. 41.3. As discussed below, there is no conflict between the Fourteenth Court of Appeals and
the Ninth Court of Appeals on the dispositive legal issues in this case.

                                               4
is correct under any theory of law applicable to the case.” Willover v. State, 70
S.W.3d 841, 845 (Tex. Crim. App. 2002).

                                       ANALYSIS

      Appellant contends in his first issue that the trial court erred in denying his
motion to suppress because his rights were violated when police stopped his
vehicle without reasonable suspicion of criminal activity. Appellant claims that he
has standing to challenge the traffic stop even though he was merely a passenger.
A defendant can challenge the validity of the initial stop of a vehicle in which he
was a passenger, since his personal liberty and freedom were intruded on by that
action. See Lewis v. State, 664 S.W.2d 345, 348 (Tex. Crim. App. 1984).3 An
investigative detention requires a police officer to have a reasonable suspicion of
criminal activity. See Terry v. Ohio, 392 U.S. 1, 30 (1968); Woods v. State, 956
S.W.2d 33, 35 (Tex. Crim. App. 1997).             The reasonableness of a temporary
detention is determined from a totality of the circumstances. Woods, 956 S.W.2d
at 38. We determine, using an objective standard, whether the facts available to
the officer at the moment of detention warrant a person of reasonable caution to
believe that the action taken was appropriate. See Terry, 392 U.S. at 21–22;
Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.—Austin 1998, pet. ref’d). If
an officer has a reasonable basis for suspecting a person has committed a traffic
offense, then the officer legally may initiate a traffic stop. McVickers v. State, 874
S.W.2d 662, 664 (Tex. Crim. App. 1993). Reasonable suspicion is present if the
officer has specific, articulable facts that, when combined with rational inferences
from those facts, would lead him to reasonably conclude that a person actually is,
has been, or soon will be engaged in criminal activity. Ford v. State, 158 S.W.3d

      3
          Although the State challenged appellant’s standing in responding to his motion to
suppress, it does not raise this argument on appeal.

                                            5
488, 492 (Tex. Crim. App. 2005). An officer’s stated purpose for a stop can
neither validate an illegal stop nor invalidate a legal stop because its legality rests
on the totality of the circumstances viewed objectively. See Simpson v. State, 29
S.W.3d 324, 328 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

      Appellant argues that the initial stop was illegal because Cooke did not offer
specific, articulable facts that the driver of the vehicle committed a traffic offense.
Section 545.060 of the Texas Transportation Code states in pertinent part that “an
operator on a roadway divided into two or more clearly marked lanes for traffic:
(1) shall drive as nearly as practical entirely within a single lane; and (2) may not
move from the lane unless that movement can be made safely.” Tex. Transp. Code
§ 545.060(a). This statute is violated only when the vehicle’s movement is unsafe.
See Ehrhart v. State, 9 S.W.3d 929, 930 (Tex. App.—Beaumont 2000, no pet.);
Hernandez, 983 S.W.2d at 871.

      Appellant relies on several cases in which reviewing courts have concluded
that there is insufficient justification for a traffic stop when there is evidence that
the appellant failed to maintain a single lane but no additional testimony that the
movement out of a single lane is unsafe. Fowler v. State, 266 S.W.3d 498 (Tex.
App.—Fort Worth 2008, pet. ref’d); Eichler v. State, 117 S.W.3d 897 (Tex.
App.—Houston [14th Dist.] 2003, no pet.); Aviles v. State, 23 S.W.3d 74 (Tex.
App.—Houston [14th Dist.] 2005, pet. ref’d); Erhart v. State, 9 S.W.3d 929 (Tex.
App.—Beaumont 2000, no pet.). In each case, the stop was based solely on
observation of an alleged traffic offense; and there was no testimony that the
officer suspected any other offense such as driving while intoxicated.

      Appellant misplaces his reliance on these cases because they expressly state
that (1) the issue of driving while intoxicated was not raised; or (2) there was no
evidence that the officers suspected the defendants might be intoxicated. See

                                          6
Fowler, 266 S.W.3d at 499; Eichler, 117 S.W.3d at 900; Aviles, 23 S.W.3d at 75;
Ehrhart, 9 S.W.3d at 930; Hernandez, 983 S.W.2d at 870; see also State v. Cerny,
28 S.W.3d 796, 799 (Tex. App.—Corpus Christi 2000, no pet.) (“[The officer] did
not stop appellee for any other reason than failure to maintain a single lane.”).
Here, in contrast, Cooke testified that he suspected the driver might be intoxicated,
overmedicated, or falling asleep when he observed the driver moving out of her
lane.

        The circumstances here parallel Gajewski v. State, 944 S.W.2d 450, 451
(Tex. App.—Houston [14th Dist.] 1997, no pet.), in which a Houston police officer
stopped the defendant after observing his vehicle weaving between lanes of traffic.
After the defendant failed a series of field sobriety tests, he was arrested for driving
while intoxicated. See id. The defendant argued that the stop was illegal because
there was no evidence that his behavior affected the safety of other motorists, and
therefore did not violate any traffic law.        See id. at 452.     In rejecting the
defendant’s argument, the court stated:

        [T]here is no requirement that a particular statute is violated in order
        to give rise to reasonable suspicion. Although not an inherently
        illegal act, when the officer observed appellant’s car weaving between
        traffic lanes, reasonable suspicion existed to believe appellant was
        driving the motor vehicle while intoxicated, or that some activity out
        of the ordinary is or has occurred, so as to justify the temporary stop
        of defendant’s car.

Id.

        Cooke testified he observed the vehicle move out of its lane for several
hundred feet and testified that crossing the center line “could be an indicator of
someone falling asleep, intoxicated, overmedicated.” Cooke answered “Yes,” to a
question asking, “And have you in the course of your experience often encountered
folks that did the same thing that Ms. Downs did that, in fact, were based on your
                                           7
experience intoxicated, sleepy, overmedicated, drowsy, whatever?”             After
reviewing the evidence as stated above and giving full consideration to the totality
of the circumstances and Cooke’s law enforcement experience, we conclude the
trial court reasonably could have concluded that (1) Cooke did not stop the vehicle
solely for failing to maintain a single lane, and (2) Cooke observed driving
behavior that reasonably lead him to believe appellant was driving while
intoxicated, asleep, overmedicated, or otherwise impaired. See Curtis v. State, 238
S.W.3d 376, 381 (Tex. Crim. App. 2007) (holding officer’s extensive experience in
detecting intoxicated drivers, coupled with his training to view weaving
specifically as an indication of intoxicated driving, established reasonable
suspicion to justify an investigative detention when he observed vehicle weaving in
and out of his lane several times over a short distance late at night). These
circumstances established a reasonable suspicion that crime was being committed.
The trial court did not abuse its discretion in denying the motion to suppress based
on this record. We overrule appellant’s first issue. Because we have found the
evidence supports the trial court’s implied finding that Cooke had a reasonable
suspicion to stop the vehicle, we need not address appellant’s second issue arguing
Cooke was not acting within a community-caretaking capacity. See Willover, 70
S.W.3d at 845.

      We affirm the trial court’s judgment.


                                      /s/       William J. Boyce
                                                Justice



Panel consists of Chief Justice Frost and Justices Boyce and Jamison. (Jamison, J.,
dissenting).
Publish — TEX. R. APP. P. 47.2(b).

                                            8
