                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00316-CR


DARIN PREJEAN                                                         APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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       FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY

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                         MEMORANDUM OPINION1
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      Appellant Darin Prejean appeals his conviction for driving while intoxicated

(DWI).2 In one point, he argues that the arresting officer did not have legal

justification to initiate a traffic stop and that the trial court therefore erred by

denying his motion to suppress. We affirm.



      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003).
                                 Background Facts

      On an early morning in November 2009, Flower Mound Police Department

Officer Michael Draut was watching northbound traffic on Long Prairie Road

when he saw appellant‘s Honda Odyssey ―going over and coming back from left

to right a couple of times.‖3 Officer Draut started his in-car camera and began to

follow appellant, who was continuing to weave.4 Appellant weaved about five

times in the course of a quarter of a mile. Officer Draut turned on his overhead

patrol lights because he thought appellant was intoxicated or was having a

medical emergency, and appellant pulled over. Officer Draut eventually arrested

appellant for DWI, and the State charged him with the same offense.

      Appellant sought suppression of all evidence connected to his detention or

arrest; he contended that he was ―stopped by an agent of the State . . . without

reasonable suspicion . . . or other lawful authority‖ in violation of his constitutional

and statutory rights. The trial court denied appellant‘s motion to suppress and

entered the following findings of fact and conclusions of law:

      The Court having heard the evidence . . . and having observed the
      demeanor of the witness[] and the manner in which he testified, and
      having assessed his credibility and the weight accorded said

      3
       Officer Draut has been a police officer for several years, taken DWI
classes, and participated in DWI arrests and investigations.
      4
       The State introduced the video recording from Officer Draut‘s camera into
evidence. After watching the video, the trial judge said, ―[W]hat I believe I saw
was not only was he weaving within the lane, but I think he went over it or at least
onto some of the stripes on the driver‘s side of the vehicle.‖ We have reviewed
the same video and agree that it shows appellant‘s weaving.


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     testimony, makes the follow findings of fact and conclusions of law
     based on the totality of the circumstances presented.

                             FINDINGS OF FACT

           The Court finds as follows:

           1. Flower Mound Officer, Michael Draut, was on patrol . . . in
     the 1500 Block of Long Prairie Road at approximately 3:00 a.m. on
     November 8, 2009. . . .

            2. Officer Draut regularly patrols the above-mentioned area
     and has observed and investigated many intoxicated individuals
     driving home from bars located in Grapevine, Texas at this time of
     morning.

              3. Officer Draut observed [appellant] traveling northbound
     . . . . [Appellant] appeared to be weaving inside of [his] own lane on
     several occasions. Officer Draut thought [appellant] was possibly
     intoxicated due to the time of night, driving on the thoroughfare from
     Grapevine to Denton, and weaving within his own lane.

             4. Officer [Draut] conceded that he did not observe an actual
     traffic offense and there were no other cars on the roadway that
     would make the actual driving unsafe.

            5. Officer Draut stopped [appellant] because he suspected
     that he was intoxicated. . . . His suspicion was based on the totality
     of the circumstances, specifically due to the time of the night/early
     morning when he observed [appellant] driving, his familiarity with
     intoxicated individuals driving on this roadway, and weaving within a
     lane.

                          CONCLUSIONS OF LAW

            1. Flower Mound Officer Draut had reasonable suspicion to
     stop [appellant] to investigate whether the defendant was driving
     while intoxicated. . . .

           2. The stop of [appellant] was lawful.

     A few months after the trial court denied appellant‘s suppression motion,

he pled nolo contendere. The trial court convicted him, assessed 160 days‘


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confinement as his punishment, and suspended the confinement to place him on

community supervision for fifteen months. Appellant filed notice of this appeal.

                         The Legality of the Traffic Stop

      Appellant argues that Officer Draut‘s traffic stop was not supported by

reasonable suspicion and that the trial court should have granted his motion to

suppress.5 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

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

      5
       Appellant claims that the traffic stop was illegal under the federal and
Texas constitutions, but he does not contend that the Texas constitution provides
greater rights than the federal constitution. Thus, we will examine his point under
standards applicable to the federal constitution. See Welch v. State, 93 S.W.3d
50, 52 & n.5 (Tex. Crim. App. 2002); Reed v. State, 308 S.W.3d 417, 419 n.3
(Tex. App.—Fort Worth 2010, no pet.).


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(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

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court‘s ruling, supports those findings.    Kelly, 204 S.W.3d at 818–19.

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.

Id. at 818. 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).




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      The Fourth Amendment protects against unreasonable searches and

seizures. U.S. Const. amend. IV. And state law mandates that ―[n]o evidence

obtained by an officer or other person in violation of any provisions of . . . the

Constitution or laws of the United States of America, shall be admitted in

evidence against the accused on the trial of any criminal case.‖ Tex. Code Crim.

Proc. Ann. art. 38.23(a) (Vernon 2005); see Bell v. State, 169 S.W.3d 384, 391

(Tex. App.—Fort Worth 2005, pet. ref‘d). Stopping an automobile and detaining

its occupants is a ―seizure‖ within the meaning of the Fourth Amendment. Whren

v. United States, 517 U.S. 806, 809–10, 116 S. Ct. 1769, 1772 (1996). Because

the State stipulated that appellant‘s seizure occurred without a warrant, the State

had the burden to prove the reasonableness of the seizure. Ford v. State, 158

S.W.3d 488, 492 (Tex. Crim. App. 2005).

      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, 21–22, 88 S. Ct. 1868, 1880

(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).

Reasonable suspicion is an objective standard that disregards any subjective

intent of the officer making the stop; in other words, the fact that the officer does

not have the state of mind which is hypothecated by the reasons which provide

the legal justification for the officer‘s action does not invalidate the action taken

as long as the circumstances, viewed objectively, justify that action. Fernandez

v. State, 306 S.W.3d 354, 357 (Tex. App.—Fort Worth 2010, no pet.).


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      The court of criminal appeals recently repeated the standard for

warrantless traffic stops. See Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim.

App. 2010). The court explained,

             A law enforcement officer may stop and briefly detain a person
      for investigative purposes on less information than is constitutionally
      required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1
      (1968). In order to stop or briefly detain an individual, an officer
      must be able to articulate something more than an ―inchoate and
      unparticularized suspicion or ‗hunch.‘‖ Id. at 21. Specifically, the
      police officer must have some minimal level of objective justification
      for making the stop, i.e., when the officer can ―point to specific and
      articulable facts which, taken together with rational inferences from
      those facts, reasonably warrant [the] intrusion.‖ Id. The
      reasonableness of a temporary detention must be examined in terms
      of the totality of the circumstances.

               ....

             . . . [T]ime of day is a relevant factor in determining
      reasonable suspicion. Similarly, . . . location near a bar district
      where police have made numerous DWI arrests is also a relevant
      factor in determining reasonable suspicion.

Id. (some citations omitted).

      Thus, an officer may stop a driver based on a reasonable suspicion of DWI

even when the driver has not violated a traffic law and has not endangered other

drivers. James v. State, 102 S.W.3d 162, 172 (Tex. App.—Fort Worth 2003, pet.

ref‘d); Cook v. State, 63 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.] 2002,

pet. ref‘d).    Appellant argues that the ―facts of the present case do not

demonstrate conduct . . . that . . . tends to indicate intoxication.‖ We disagree.

      In Foster, an Austin police officer was stopped at a red light a few blocks

from a bar district. 326 S.W.3d at 610. Foster drove his truck extremely close


                                          7
behind the officer‘s vehicle, revved his engine, and lurched forward in what the

officer believed to be an attempt to move into another lane. Id. The officer

initiated a traffic stop out of a concern that Foster was impaired. Id. at 610–11.

The court of criminal appeals held that the traffic stop was justified because it

occurred in a location where intoxication was common, the time of night could

have suggested that Foster was leaving the bar district while intoxicated, the

officer knew of DWIs occurring in that area, and Foster‘s lurch was ―aggressive.‖

Id. at 613–14. Because the officer articulated something ―more than an inchoate

and unparticularized suspicion or hunch‖ that justified Foster‘s detention, the

court of criminal appeals affirmed the trial court‘s judgment. Id. at 614 (quoting

United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989)).

      In Curtis v. State, Curtis was driving on a highway when he weaved in and

out of his lane over a short distance. 238 S.W.3d 376, 377 (Tex. Crim. App.

2007). State troopers initiated a traffic stop and arrested him for DWI. Id. After

the Texarkana Court of Appeals held that the stop was not justified, the court of

criminal appeals held that the troopers had reasonable suspicion of DWI because

the stop occurred at about one o‘clock in the morning, the arresting officer had

received training in detecting DWIs, and Curtis‘s weaving at least three times

over a short distance could have indicated his intoxication. Id. at 378–81.

      Intermediate appellate courts, including our court, have approved traffic

stops under similar circumstances. See Dunkelberg v. State, 276 S.W.3d 503,

504–06 (Tex. App.—Fort Worth 2008, pet. ref‘d) (concluding that there was


                                        8
reasonable suspicion for a stop when the officer saw a car weaving early in the

morning, and after the officer activated his patrol lights, the car jumped a curb);

Ortiz v. State, 930 S.W.2d 849, 853, 856 (Tex. App.—Tyler 1996, no pet.)

(holding that officers‘ observation of a defendant‘s vehicle that weaved, hit a

grassy median, and continued to weave within its lane two or three more times

gave them reasonable suspicion that appellant was driving while intoxicated);

Davis v. State, 923 S.W.2d 781, 784, 788 (Tex. App.—Beaumont 1996) (op. on

reh‘g) (holding that a traffic stop was proper where the driver ―weav[ed] line to

line in a lane of traffic‖ about three times), rev’d on other grounds, 947 S.W.2d

240 (Tex. Crim. App. 1997); see also Walker v. State, No. 02-04-00336-CR,

2006 WL 349704, at *4–5 (Tex. App.—Fort Worth Feb. 16, 2006, no pet.) (mem.

op., not designated for publication) (holding similarly and citing other cases

reaching similar conclusions).

      Officer Draut saw appellant weave five times over just a quarter of a mile.

After watching the video taken from Officer Draut‘s camera, the trial court agreed

that appellant had weaved (and so do we). Officer Draut said that Long Prairie

Road is a ―thoroughfare from Dallas, Grapevine, and Fort Worth to come through

our town to get to Denton.‖ He explained,

      [S]ince I‘ve been working for Flower Mound, there‘s a couple of bars
      in Grapevine. There‘s the Gaylord, and I get a lot of intoxicated
      drivers that are coming from the south of that, and the traffic
      violations range from speeding to weaving to failing just to signal.
      And through my training and experience as of last night, I think I
      have about 83 [DWIs] of which I would say at least 80 percent are on
      that road at that time of night.


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Officer Draut explained that the time of appellant‘s weaving was important

because ―typically at that time of night, that‘s when the bars are closing and

people are leaving bars.‖

      Viewing this evidence in the light most favorable to the trial court‘s ruling,

we hold that appellant‘s repeated erratic driving, along with the early morning

traffic stop and Officer Draut‘s experience with DWIs on Long Prairie Road, gave

Officer Draut more than an ―inchoate and unparticularlized suspicion or hunch‖ of

appellant‘s DWI. See Foster, 326 S.W.3d at 614. Because the trial court did not

err by concluding that Officer Draut had reasonable suspicion of DWI to detain

appellant, we overrule appellant‘s point.

                                   Conclusion

      Having overruled appellant‘s point, we affirm the trial court‘s judgment.




                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

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

DELIVERED: March 10, 2011




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