                                                                              PD-0046-15
                                                             COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                          Transmitted 2/11/2015 11:10:32 AM
                                                             Accepted 2/12/2015 9:00:44 AM
                                                                               ABEL ACOSTA
                           NO.   PD-0046-15
                                                                                      CLERK

         IN THE TEXAS COURT OF CRIMINAL APPEALS



                        DONALD WESTON KING,
                                 Petitioner/Appellant

                                  VS.


                        THE STATE OF TEXAS,
                                 Respondent/Appellee


            PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS CAUSE NO. 03-14-00021-CR;
     AN APPEAL FROM THE COUNTY COURT AT LAW NO. 1
                        HAYS COUNTY, TEXAS
                 TRIAL COURT CAUSE NO. 101401




 STATE'S REPLY TO PETITION FOR DISCRETIONARY REVIEW



                                 Jennifer Stalbaum
                                 Hays County Criminal District Attorney
                                 712 S. Stagecoach Trail, Suite 2057
                                 San Marcos, Texas 78666
ORAL ARGUMENT IS                 Ph: (512) 393-7600 / Fax: (512) 393-2246
 NOT REQUESTED                   State Bar No. 24079383
                                 jennifer.stalbaum@co.hays.tx.us
                                 Attorney for the State of Texas




    February 12, 2015
                           IDENTIFICATION OF PARTIES

Appellee;                     State of Texas


Attorneys for the State:
       At trial:              David Levingston, Hays County Asst. District Attorney
       On appeal:             Jennifer Stalbaum
                              Asst. Criminal District Attorney
                              Hays County Criminal District Attorney
                              712 S. Stagecoach Trail, Suite 2057
                              San Marcos, Texas 78666
                              State Bar No. 24079383


Petitioner:                   Donald Weston King

Attorney for Petitioner:
       At trial:              Billy McNabb
                              144 E. San Antonio St.
                              San Marcos, TX 78666

       On appeal:             Kevin Fine
                              P.O. Box 312
                              Boeme, Texas 78006 ^
                              State Bar No.00790682
                              512-593-1383/Hill Country
                              713-299-192/Houston
                              1-888-803-8721/Efax
                              kfine@kevinfinelaw.com

                              Billy McNabb
                              144 E. San Antonio St.
                              San Marcos, TX 78666

       Judge                  Honorable Robert Updegrove
                              Hays County Court at Law No. 1
                              712 Stagecoach Trail, Suite 2292
                              San Marcos, Texas 78666
                               TABLE OF CONTENTS




IDENTIFICATION OF PARTIES                                                            i
TABLE OF CONTENTS                                                                    ii
INDEX OF AUTHORITIES                                                                iii
STATEMENT REGARDING ORAL ARGUMENT..                                                  2
STATEMENT OF THE CASE                                                                2
STATEMENT OF PROCEDURAL HISTORY                                                      2
GROUND FOR REVIEW                                                                    3
       De novo review is an improper standard when the court is presented with a
       mixed question of law and fact that turns on the evaluation of credibility and
       demeanor. Here, the appellate court properly gave almost total deferenceto the
       trial court's inferences when presented with conflicting evidence that turned on
       the evaluation of credibility and demeanor. Did the court err by not using the
       de novo standard?

ARGUMENT                                                                             3
  A.       De novo review is not proper when there is conflicting
  EVIDENCE      THAT   TURNS    ON   THE   EVALUATION    OF   CREDIBILITY   AND
  DEMEANOR                                                                           4
  B.       This Court should deny the Petition for Discretionary
  Review because this issue is settled by well-established precedent                 5

  C.    There is no conflict with the Third Court of Appeals'
  opinion and other applicable cases                                                 7

CONCLUSION                                                                           7

CERTIFICATE OF COMPLIANCE WITH TEXAS RULES OF
APPELLATE PROCEDURE, RULE 9.4                                                        9
CERTIFICATE OF SERVICE                                                               9

APPENDIX                                                                             A




                                           n
                          INDEX OF AUTHORITIES

STATE CASES


Abney v. State, 394 S.W.3d 542 (Tex. Crim. App. 2013)                  7

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 2011)              4

King V. State, No. 03-14-00021-CR, 2014 WL 6233969, *6 (Tex.
   App.—Austin Nov. 14, 2014)                                          5

Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998)                7

State V. Ross, 32 S.W.3d. 853 (Tex. Crim. App. 2000)           3, 4, 5, 6




                                        111
                               NO.    PD-0046-15


                 IN THE TEXAS COURT OF CRIMINAL APPEALS



                          DONALD WESTON KING
                                      Petitioner/Appellant

                                       VS.


                           THE STATE OF TEXAS,
                                      Respondent/Appellee


                 PETITION FOR DISCRETIONARY REVIEW
  FROM THE THIRD COURT OF APPEALS CAUSE NO. 03-14-00021-CR;
         AN APPEAL FROM THE COUNTY COURT AT LAW NO. 1
                           HAYS COUNTY, TEXAS
                      TRIAL COURT CAUSE NO. 101401



   STATE'S REPLY TO PETITION FOR DISCRETIONARY REVIEW



TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      COMES NOW the State of Texas, by and through her Assistant District

Attorney, Jennifer Stalbaum, and files this Response to Petitioner's Petition for

Discretionary Review pursuant to Texas Rules of Appellate Procedure, Rule 68.9 and

would show the Court the following:
               STATEMENT REGARDING ORAL ARGUMENT

      The State does not request oral argument. Oral arguments would not aid the

Court in the decisional process. No conflict exits between the Third Court of

Appeals' opinion and existing case law.


                           STATEMENT OF THE CASE

       On November 17, 2011, petitioner was charged by information with the

offense of driving while intoxicated enhanced with one prior driving while

intoxicated conviction.^ Petitioner filed a Motion to Suppress alleging that the initial

traffic stop was unlawful.^ On February 1, 2013, the trial court entered an order

denying the motion.^ On December 12, 2013, petitioner entered a plea of nolo

contendre and, pursuant to a plea bargain agreement, was sentenced to one year

confinement in the Hays County Jail, suspended for 18 months, and fined $800.00."^

Petitioner reserved his rightto appeal matters raised and ruledupon before the trail.^


                  STATEMENT OF PROCEDURAL fflSTORY

       Petitioner filed a Notice of Appeal on December 13, 2013.^ The Third Court of

Appeals affirmed the trial court's judgment on November 14, 2014. The State



^CR8.
^CRIO.
^ CR 12.
 CR 22-24.
^CR23.
®CR 25-26.
received notice that a Motion for En Banc Reconsideration was filed. The Third

Court of Appeals overruled Petitioner's Motion for En Banc Reconsideration on

December 11, 2014.

                                GROUND FOR REVIEW

       De novo review is an improper standard when the court is presented with a
       mixed question of law and fact that turns on the evaluation of credibility and
       demeanor. Here, the appellate court properly gave almost total deference to the
       trial court's inferences when presented with conflicting evidence that turned on
       the evaluation of credibility and demeanor. Did the court err by not using the
       de novo standard?

                                        ARGUMENT

       Petitioner urges discretionary review of the Third Court of Appeals' opinion,

complaining that the court did not apply the proper standard of review because the facts

are not in dispute and credibility was not in issue.' Petitioner argues that the court should

have used a de novo standard.^ De novo is improper under Ross, when conflicting

evidence exists.^ Here, conflict exists between Corporal Tommy Villanueva's

testimony and his hand drawn picture entered into evidence.His drawing does not

specifically indicate the number of lanes or direction of travel.^ ^He held his drawing

up to the court while testifying about the roadway and the petitioner's turns, placing

the trial court in the best position to evaluate and weigh the evidence.           Corporal


' Petition for Discretionary Review at 4-6.
^Petition for Discretionary Review at3.
^State V. Ross, 32 S.W.3d. 853 (Tex. Crim. App. 2000) (en banc).
^°3RR3.
^^3RR3.
^^2RR9.
Villanueva described the roadway as having four lanes: two outbound lanes and two

inbound lanes.He observed the petitioner failing to maintain a single lane and

making several "immediate" turns in the middle of an intersection, which he called

an "illegal U-tum."^'^

           A. De Novo review is not proper when there is conflicting
               EVIDENCE THAT TURNS ON THE EVALUATION OF CREDIBILITY AND

               DEMEANOR.


   /   The trial court was in the best position to determine if Corporal Villanueva's

testimony was believable, to reconcile any conflict between the drawing and the

testimony, and to evaluate the witness' demeanor while testifying. De novo review

would have been error under Ross since there was conflicting evidence that the trial

court had to reconcile.


       A bifurcated standard of review is not applicable in everymotion to suppress.^^

The standard of review is abuse of discretion where the application of law to fact

questions turn on the evaluation of credibility and demeanor.^® Ross explains that a

mixed question of law and fact turns on credibility and demeanor when the trial court




^^2RR9.
^'^2RR8,2RR9.
   See Ross, at 856 (stating that "almost total deference" is given to a trial court's express or implied
determination of historical facts and a de novo review is given to a trial court's application of the
law to those facts. However, "not every probably cause case will be reviewed under the bifurcated
standard.").
   Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 2011).
                                                   4
evaluates which evidence or testimony deserves more weight/^ Here, the trial court

had to determine if the testimony or the drawing deserved more weight.

        Furthermore, no findings of facts or conclusions of law were requested or

entered in this case. Thus, the trial court is presumed to have made implicit findings

of facts and conclusions of law that support its ruling.'® Reading an impersonal

record with no supporting findings of facts or conclusions of law deprives the reader

of knowing which evidence the trial court used in making its decision. Here, the

Third Court of Appeals did not know which evidence the trial court found credible,

so it viewed the evidence in the light most favorable to the trial court's ruling. Thus,

no reviewable issues exist.


           B. Tffls Court should deny the Petition for Discretionary
                Review because this issue is settled by well-established
                precedent.


       Ross controls the issue here and provides that de novo standard is improper.^^

The dissent in the court below ignores Ross' binding precedent. The dissent

highlights conflicts in evidence and confusion of testimony, yet suggests that the

appropriate standard of review is de novo?° The dissent argues that the drawing



  See Ross, at 857.
   See id. at 855 (stating that when a trail court does not enter findings of facts or conclusions of law
it is assumed to have made implicit findings of fact that support its ruling as long as the ruling is
supported by the record).
  See id. at 857.
  King V. State, No. 03-14-00021-CR, 2014 WL 6233969, *6 (Tex. App.—Austin Nov. 14, 2014)
(mem. op., not designated for publication).
depicts something different from Corporal Villanueva's testimony in regards to the

direction of a turn?' It disagrees that enough facts exist for the trial court to make a

decision, and it states that Corporal Villanueva's testimony was confusing?^

Furthermore, the dissent provides that since the accreditation of the officer is not

disputed, no issue of credibility exists and the court must use a de novo standard of

review.^^

        Under Ross, when there is conflicting evidence, as we have here, the trial court

is given almost total deference because it had to weigh evidence and determine

credibility and demeanor?'^ The credibilityissue is not merely focused on the fact that

Corporal Villanueva had the requisite accreditation or experience; the focus is on the

credibility of the evidence he presented. Thus, de novo review is not the appropriate

standard when there is conflicting evidence presented to the trial court. The Third

Court of Appeals followed this Court's precedent. Therefore, this Honorable Court

should refuse to grant Petitioner's request for Discretionary Review.




^'Id.
''Id.
  Id.
  See Ross, dX^55-56.
           C. There is no conflict with the Third Court of Appeals'
                OPINION AND OTHER APPLICABLE CASES.


       Petitioner points this court to Loserth,^^ and Ahney^^ as being in conflict with

the Third Court of Appeals' decision to apply an abuse discretion standard.^^ In

Abney, the court used a de novo standard because there was not a factual dispute?^ In

Loserth, the Court found that while there was a mixed question of law and fact, it did

not turn on an evaluation of credibility and demeanor because the issue was whether

eye-witness identification was tainted?® Here, there are factual disputes and

conflicting evidence, so Abney and Loserth are inapplicable. Thus, no reviewable

issues exist.


                                      CONCLUSION

       Since there was conflicting evidence in this case which turned on the

evaluation of credibility and demeanor, the Third Court of Appeals did not err in

using the abuse of discretion standard. No reviewable issues exist.

                                          PRAYER


       The State prays that the Court refuse Petitioner's Petition for Discretionary

Review.




  Loserth v. State, 963 S.W.2d 770 (Tex. Grim. App. 1998).
  Abney v. State, 394 S.W.3d 542 (Tex. Crim. App. 2013).
  Petition for Discretionary Review at 3-4.
  See Abney, at 548.
  See Loserth, at 112).
                                               7
Resn^fully submitted,


         Stalbaum
              \_/
       )istrict Attorney
Hay¥County Government Center
712 South Stagecoach Trail, Suite 2057
San Marcos, Texas 78666
jennifer.stalbaum@co.hays.tx.us
San Marcos, Texas, 78666
Telephone: 512-393-7600
Facsimile: 512-393-2065
Counsel for the State of Texas




   8
             CERTIFICATE OF COMPLIANCE WITH TEXAS
             RULES OF APPELLATE PROCEDURE. RULE 9.4

       I certify that this brief contains 1,061 words, exclusive of the caption, identity

of parties and counsel, statement regarding oral argument, table of contents, index of

authorities, statement of the case, statement of issues presented, statement of

jurisdiction, statement of procedural history, signature, proof of service, certification.

certificate of compliance, and appendix.



                                                        aum

                                            St. Criminal District Attorney



                           CERTIFICATE OF SERVICE

       I certify that a true copy of the foregoing brief has been e-delivered to:

Kevin Fine
P.O. Box 312
Boeme, Texas 78006
State Bar No.00790682
512-593-1383/Hill Country
713-299-192/Houston
1-888-803-8721/Efax
kfine@kevinfinelaw.com



on this the 11 day ofFebruary, 2015.
                                           /O


                                         Jennifer      )aum

                                                      (al District Attorney
APPENDIX




           Page A
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-14-00021-CR




                                Donald Weston King, Appellant

                                                V.



                                  The State of Texas, Appellee



              FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
           NO. 101401, HONORABLE ROBERT UPDEGROVE, JUDGE PRESIDING




                            MEMORANDUM                  OPINION



               Appellant Donald Weston King was arrested for driving while intoxicated. After

the trial court denied his motion to suppress evidence, King pleaded nolo contendere, and the trial

court sentenced him in accordance with a plea agreement. On appeal, King challenges the denial

of his motion to suppress. For the reasons that follow, we affirm.


                                        BACKGROUND


               King was charged by information with the offense of driving while intoxicated on

October 7, 2011, enhanced with one prior driving while intoxicated conviction. In the trial court,

King moved to suppress evidence from the traffic stop that resulted in his detention and arrest.

               The suppression hearing was held on January 29, 2013. The arresting officer who

had been with the San Marcos Police Department for 15 years was the only witness to testify. He

testified that he was working the midnight shift when he observed the vehicle King was driving
"failing to maintain a single lane" and make "an illegal U-tum." The vehicle "was traveling

southbound on Hunter Road towards Wonder World" in San Marcos, Texas. After the officer

observed the vehicle "failing to maintain a single lane," the driver ofthe vehicle "made a right onto

Wonder World and immediately did a U-tum on Wonder World back onto Hunter to continue

driving southbound on Hunter." The officer further explained the vehicle's movement through the

intersection as follows;



        As soon as he made a right onto Wonder World—guess I'll have it up to you so
        you can see—^he made the right right there, and I believe it's a two-lane outbound
        and two-lane inbound, so four way—or a four lane road. He was on the right-hand
        side, and I guess he figured out he was going the wrong way. I don't know. He just
        immediately swung around to the left back into the—into the right-hand lanes and
        then immediately went to the right onto Hunter as well.


The officer referred to a map that he had hand drawn the morning of the hearing that depicted the

intersection and King's movements through the intersection. The map was admitted as an exhibit.

The officer initiated the traffic stop after the vehicle cleared the intersection. The officer explained:

"I slowed behind him not knowing—^thinking he was going to go straight on Wonder World, and

when he immediately hit his brakes to turn left, I just kind ofhimg back and waited to see what he

was going to do, and he continued straight on Hunter."

                At the conclusion ofthe hearing, the State requested that the trial court take judicial

notice that Wonder World was four lanes with a divided double-yellow line. After the hearing, the

trial court denied the motion to suppress but did not rule on the State's request for judicial notice.

No findings offact or conclusions oflaw were requested or made. After the motion to suppress was
denied, King pleaded nolo contendere, and the trial court sentencedhim in accordancewith a plea

agreement. This appeal, limited to the denial of the motion to suppress, followed.


                                   STANDARD OF REVIEW


                 A trial court's ruling on a motion to suppress is reviewed under an abuse of

discretion standard. Grain v. State, 315 S.W.3d 43, 38 (Tex. Crim. App. 2010); see also Smith

V. State, 286 S.W.3d 333,339 (Tex. Crim. App. 2009) (stating that trial court abuses its discretion

when its decision lies outside zone ofreasonable disagreement). In a suppression hearing, the trial

court is "the sole trier of fact and judge of credibility of the witnesses and the weight to be given

to their testimony." St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).

                 We apply a bifurcated standard of review to a trial court's ruling on a motion to

suppress evidence. Wilson v. State, 311 S.W.3d 452,457-58 (Tex. Crim. App. 2010); Garmouche

V. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Under that standard, we defer to the

trial court's determination of historical facts "if supported by the record," Wade v. State,

422 S.W.3d 661, 666 (Tex. Crim. App. 2013), but we review de novo the trial court's application

ofthe law to those facts, Wilson,3ll S.W.3dat458. Similarly, appellate courts "afford almost total

deference" to rulings on mixed questions of law and fact when the resolution of those questions

depends on the evaluation of credibility and demeanor but review de novo mixed questions oflaw

and fact that do not depend on an evaluation of credibility and demeanor. State v. Johnson,

336 S.W.3d 649, 657 (Tex. Crim. App. 2011).            Further, we review de novo purely legal

questions. Id.
                King did not request findings of fact and conclusions of law. Thus, we must "view

the evidence in the light most favorable to the trial court's ruling and assume that the trial court

made implicit findings of fact that support its ruling as long as those findings are supported by the

record." Wiedev. State, 214 S.W.3d 17,25 (Tex. Crim. App. 2007) {ciXmgStatev.Ross, 32 S.W.3d

853, 855 (Tex. Crim. App. 2000) (citing Carmouche, 10 S.W.3d at 328)).


                                           DISCUSSION


                In one issue, King contends that the trial court erred in finding that there was

reasonable suspicionfor the officer to initiate the traffic stop.' He urges that the trial court erred

in finding that King committed a traffic violation under section 545.051(c) of the Transportation

Code. See Tex. Transp. Code § 545.051(c). According to King, section 545.102 is the section of

the Transportation Code that specifically addresses u-tums and, under that section, the u-tum that

King made was not a traffic violation. See id. § 545.102.

                An officer may initiate a traffic stop when he reasonably suspects that the driver is

violating the law. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); see also

U.S. Const, amend. IV; Terry v. Ohio, 392 U.S. 1, 21 (1968). "Reasonable suspicion exists if the




        ' As an initial matter, King urges that, to the extent the trial court took judicial notice that
the road in question was a four-lane road with a divided double-yellow line, it erred. See Tex. R.
Evid. 201 (allowing judicial notice of adjudicative facts). King contends tbatjudicialnotice was
improper because the condition and makeup of the road over a year prior to the hearing was not
commonly known and was contested, and the trial court did not notify King that it was taking
judicial notice. See id. R. 201(e) (entitling party to opportunity to be heard as to propriety oftaking
judicial notice). The record, however, does not reflect that the trial court took judicial notice of any
facts. Although the State asked the trial court to take judicial notice that the road was four lanes with
a divided double-yellow line, the trial court did not rule on the request.
officer has specific articulable facts that, when combined with rational inferences fi-om those facts,

would lead him 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) (citing Garcia

V. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)). "The test for reasonable suspicion is an

objective one that focuses solely on whether an objective basis exists for the detention and

disregards the officer's subjective intent." State v. Kerwick, 393 S.W.3d 270,274 (Tex. Crim. App.

2013) (citing Terry, 392 U.S. at 21-22 and York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App.

2011)). The standard is "what a reasonable officer would have done with what he actually did see."

See StateV. Duran, 396 S.W.3d 563, 572 (Tex. Crim. App. 2013). In making the determination of

whether reasonable suspicion existed, we consider the totality of the circumstances. Ford,

158 S.W.3d at 492; Garcia, 43 S.W.3d at 530.

               Because the only evidence presented at the hearing was the testimony ofthe arresting

officer and his hand-drawn map of the intersection, the trial court was presented with a mixed
                                                 f
                                                 !




question of law and fact wherein the resolution turned on an evaluation of the credibility and

demeanor of the arresting officer. See Ross, 32 S.W.3d at 856. Therefore, we give almost total

deference to the trial court's ruling that reasonable suspicion existed. See id.-, see also Johnson,

336 S.W.3dat657.


               To support his position that the trial court erred by denying his motion to suppress.

King focuses on the officer's testimony that he "believe[d]" the road was four lanes. BCing contends

that the officer's beliefthat the road was four lanes conflicted with the officer's hand-drawn map,

and the officer's belief over a year after an incident is insufficient to establish the existence of
reasonable suspicion to initiate a traffic stop or to support a finding of a traffic violation under

section 545.051(c) of the Transportation Code. See Tex. Transp. Code § 545.051(c). King urges

that the officer's hand-drawn map contradicted the officer's testimony that the road was four lanes

because the map depicts the road as two lanes.

               Viewing the evidence in the light most favorable to the trial court's ruling, however,

the trial court could have found that the hand-drawn map showed directions of travel, not number

of lanes, and that the map, therefore, was not inconsistent with the officer's testimony. See Wiede,

214 S.W.3d at 25. Further, we must assume that the trial court found the officer's testimony

credible. See St. George, 237 S.W.Sd at 725 (noting that trial court is "the sole trier of fact and

judge of credibiUty of the witnesses and the weight to be given to their testimony"); Wiede,

214 S.W.3d at 25 (noting that appellate court must view the evidence in the light most favorable

to the trial court's ruling and assume that the trial court made impUcit findings of fact that support

its ruling as long as those findings are supported by the record).

               King also focuses on the particular provision ofthe Transportation Code alleged to

have been violated. He urges that the more specific section 545.102 of the Transportation Code,

addressing "Turning on Curve or Crest of Grade," controls over section 545.051(c). See Tex.

Transp. Code §§ 545.051(c), .102. For purposes of this appeal, section 545.102 prohibits u-tums

in specified situations, id. § 545.102, and section 545.051(c) provides that "[a]n operator on a

roadway having four or more lanes for moving vehicles and providing for two-way movement of

vehicles may not drive left of the center line of the roadway." See id. § 545.051(c).
                The State did not argue to the trial court and does not assert on appeal that King

violated section 545.102, but that the trial court could have denied the motion to suppress based on

a finding that either; (i) King violated section 545.051 by not staying to the right of the roadway,

or (ii) the officer had reasonable suspicion to stop the vehicle under a totality ofthe circumstances

even absent a traffic violation. See Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014)

(noting that it is "not necessary that the reasonable suspicion relate to a specific criminal offense");

Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013) (explaining that "State does not have

to establish with absolute certainty that a crime occurred; it just has to carry its burden of proving

that, under the totality of the circumstances, the seizure was reasonable"); Derichsweiler v. State,

348 S.W.3d 906, 916 (Tex. Crim. App. 2011) (noting that it is "not a sine qua non of reasonable

suspicion that a detaining officer be able to pinpoint a particular penal infiraction"); Curtis v. State,

238 S.W.3d 376, 379-80 (Tex. Crim. App. 2007) (finding that court of appeals failed to consider

"rational inference" from "car weaving in and out ofhis lane several times, over short distance, late

at night" in its determination of whether there was justification for detention); Arroyo v. State,

No. 01-10-00136-CR, 2011 Tex. App. LEXIS 679, at *10-12 (Tex. App.—Houston [1st Dist.]

Jan. 27,2011, no pet.) (mem. op., not designated for publication) (collecting cases in which courts

considered, among other facts, time of day and weaving in determination of whether there was

reasonable suspicion of driving while intoxicated based on totality of circumstances).

                Here, in addition to the officer's testimony about the vehicle's movement through

the intersection, the officer also observed the vehicle "failing to maintain a single lane" before it

reached the intersection, the traffic stop occurred after midnight, and the officer had 15 years of
experience. Viewing this evidence in the light most favorable to the trial court's ruling and

assuming that the trial court made implicit findings of fact based on rational inferences fi-om this

evidence, we agree with the State that the record supports a finding of reasonable suspicion. See

Guerra, 432 S.W.3d at 911; Neal, 256 S.W.3d at 280. Thus, considering the totality of the

circumstances, we cannot conclude that the trial court erred when it denied the motion to suppress.

See Ford, 158 S.W.3d at 492; Garcia, 43 S.W.3d at 530.



                                         CONCLUSION


               For this reason, we overrule King's issue and affirm.




                                              Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin
   Dissenting Opinion by Chief Justice Jones

Affirmed


Filed: November 14, 2014

Do Not Publish
