                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00015-CR



       DOUGLAS WAYNE PILLARD, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



     On Appeal from the County Criminal Court No. 1
                 Tarrant County, Texas
                Trial Court No. 1302247




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
          Concurring Opinion by Justice Carter
                                    MEMORANDUM OPINION
        Douglas Wayne Pillard pled guilty to and was convicted of driving while intoxicated

(DWI), a class B misdemeanor. Pillard’s ninety-day jail sentence and fine of $750.00 were

suspended, and he was placed on community supervision for a period of eighteen months. On

appeal, 1 Pillard challenges the trial court’s denial of his motion to suppress, arguing that the

arresting officer lacked reasonable suspicion to conduct the investigative stop that resulted in his

arrest. Because we find that the arresting officer had reasonable suspicion to conclude that

Pillard was driving while intoxicated, we affirm the trial court’s judgment.

I.      Standard of Review

        “We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion

and overturn that ruling ‘only if it is outside the zone of reasonable disagreement.’” Hutchison v.

State, 424 S.W.3d 164, 175 (Tex. App.—Texarkana 2014, no pet.) (quoting Martinez v. State,

348 S.W.3d 919, 922 (Tex. Crim. App. 2011)); see Crain v. State, 315 S.W.3d 43, 48 (Tex.

Crim. App. 2010). “In reviewing such a ruling, we apply a bifurcated standard of review.”

Wilson v. State, 311 S.W.3d 452, 457–58 (Tex. Crim. App. 2010) (citing Carmouche v. State, 10

S.W.3d 323, 327 (Tex. Crim. App. 2000)). “We approach our review with two standards,

‘giving almost total deference to a trial court’s determination of historic facts and mixed

questions of law and fact that rely on the credibility of a witness, but applying a de novo standard

of review to pure questions of law and mixed questions that do not depend on credibility


1
 Originally appealed to the Second Court of Appeals in Fort Worth, this case was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West
2013). We follow the precedent of the Second Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

                                                       2
determinations.’” Hutchinson, 424 S.W.3d at 175 (quoting Martinez, 348 S.W.3d at 922–93);

see State v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011); Wilson, 311 S.W.3d at 458;

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

           At the suppression hearing, the trial judge is the sole trier of fact and exclusive judge of

the credibility of the witnesses and the weight to be given their testimony. St. George v. State,

237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman, 955 S.W.2d at 89. A trial court’s ruling

on a motion to suppress will be affirmed if it “is reasonably supported by the record and is

correct under any theory of law applicable to the case.” Young v. State, 283 S.W.3d 854, 873

(Tex. Crim. App. 2009) (per curiam).

II.        Evidence at the Suppression Hearing

           Pillard was stopped by Daniel McLean, “the DWI officer with the City of Grapevine,”

Texas. McLean testified that he had completed approximately two dozen DWI-related courses

and had conducted thousands of DWI stops. McLean was monitoring traffic leaving an area

known for its bars when he spotted Pillard’s truck travelling at a slow rate of speed after

2:00 a.m. “when the bar scene closes.” Using a recently calibrated Dopplar radar, McLean

verified that the truck was travelling at twenty miles per hour in a forty-mile-per-hour zone. 2

McLean followed the truck, “observed the vehicle weaving within its lane of travel,” and pulled

the truck over based on a suspicion that the driver might be intoxicated.




2
    There was no posted minimum speed limit on the stretch of roadway driven by Pillard.
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III.   Analysis

       A routine traffic stop gives rise to questions under both the United States and Texas

Constitutions and, under both, must be reasonable. Berkemer v. McCarty, 468 U.S. 420, 436–37

(1984); Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996); see U.S. CONST. amend.

IV; TEX. CONST. art. I, § 9. In this case, it is undisputed that the officer did not have a warrant to

stop Pillard’s vehicle. Thus, the State was required to prove that the seizure was reasonable. See

Delafuente v. State, 414 S.W.3d 173, 176 (Tex. Crim. App. 2013).

       Law enforcement officers may stop and briefly detain individuals suspected of criminal

activity on less information than is constitutionally required for probable cause to arrest. Terry v.

Ohio, 392 U.S. 1, 22 (1968).        To make an investigative stop, the officer must possess a

reasonable suspicion based on specific, articulable facts that in light of the officer’s experience

and general knowledge would lead the officer to reasonably conclude the person detained

actually is, has been, or soon will be engaged in criminal activity. United States v. Sokolow, 490

U.S. 1, 10 (1989); Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); Graves v. State,

307 S.W.3d 483, 489–90 (Tex. App.—Texarkana 2010, pet. ref’d); Zervos v. State, 15 S.W.3d

146, 151 (Tex. App.—Texarkana 2000, pet. ref’d). This is an objective standard that disregards

any subjective intent of the officer making the stop. Ford v. State, 158 S.W.3d 488, 492 (Tex.

Crim. App. 2005). The facts used to support the investigative stop must support more than a

mere hunch or suspicion. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).

       Pillard points out that McLean never witnessed a traffic violation. However, “[t]here is

no requirement that a traffic regulation has been or is about to be violated in order for an officer

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to have reasonable suspicion sufficient to justify a stop of a vehicle.” James v. State, 102 S.W.3d

162, 172 (Tex. App.—Fort Worth 2003, pet. ref’d); see State v. Alderete, 314 S.W.3d 469, 473

(Tex. App.—El Paso 2010, pet. ref’d). “An officer may be justified in stopping a driver based

upon a reasonable suspicion of driving while intoxicated.”          James, 102 S.W.3d at 172;

McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.—Fort Worth 2001, pet. ref’d).

       Although McLean testified that Pillard’s truck was weaving within his lane of travel,

Pillard argues (1) that the video recording of the investigative stop shows that Pillard was not

weaving within the lane and (2) that the truck’s slow rate of speed was not sufficient to establish

reasonable suspicion for the detention.

       We disagree with Pillard’s first argument. In Carmouche, an officer testified he obtained

consent to conduct a pat-down search of the defendant, which led to the discovery of narcotics.

Carmouche, 10 S.W.3d at 327. Based on the officer’s testimony, the trial court overruled the

defendant’s motion to suppress, impliedly finding that consent to search was given. Id. at 327–

28.   After reviewing a video recording of the arrest—which did not support the officer’s

testimony that the defendant consented to the search—the Texas Court of Criminal Appeals

wrote, “[W]e cannot blind ourselves to the videotape evidence” where the “videotape presents

indisputable visual evidence contradicting essential portions of [an officer’s] testimony.” Id. at

332. In this circumstance, the court declined to give “almost total deference” to the historical

factual determinations made by the trial court. Id. Citing to Carmouche, Pillard argues that we




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should review de novo the court’s implied finding of weaving within the lane because the

recording does not show any weaving within the lane. 3

         Here, McLean testified, “[W]hen I moved out after the vehicle, I observed the vehicle

weaving within its lane of travel.” The nighttime video recording taken from McLean’s patrol

car is pixelated and unfocused. It shows that Pillard’s truck passed McLean’s patrol car by

approximately one block before McLean decided to initiate pursuit. Because Pillard’s vehicle

was at a distance, the video recording does not clearly depict the lanes on the roadway during the

time of McLean’s initial approach to the truck. Thus, unlike the video recording in Carmouche,

the recording in this case does not present indisputable visual evidence contradicting McLean’s

testimony that Pillard was weaving within his lane of travel. 4 Thus, we defer to the trial court’s

implied finding—based on McLean’s testimony—that Pillard was weaving within his lane.

         In Delafuente, the Texas Court of Criminal Appeals found that “[d]riving at a speed that

is less than the posted limit is not, by itself, sufficient for reasonable suspicion.” Delafuente, 414

S.W.3d at 178 (citing Tex. Dept. Pub. Safety v. Gonzales, 276 S.W.3d 88, 93 (Tex. App.—San

Antonio 2008, no pet.)). 5 According to Delafuente, the record in this case would require reversal


3
See State v. Cullen, 195 S.W.3d 696, 698 (Tex. Crim. App. 2006) (citing State v. Ross, 32 S.W.3d 853, 855 (Tex.
Crim. App. 2000)) (discussing implied findings).
4
 Moreover, recognizing that the language in Carmouche created potential for confusion, the Texas Court of Criminal
Appeals reaffirmed that a reviewing court should afford almost total deference to “a trial court’s determination of
historical facts when that determination is based on a videotape recording admitted into evidence at a suppression
hearing.” Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006); see State v. Duran, 396 S.W.3d 563,
570–71 (Tex. Crim. App. 2013). It is possible that the trial court could have reviewed the unclear video recording
and determined that Pillard was weaving within the lane.
5
 In Gonzales, the trial court found that evidence of a defendant’s slow rate of speed and weaving within the lane was
not sufficient to establish reasonable suspicion to stop the defendant for the specific traffic violation of impeding
traffic where there was no evidence that traffic was being impeded. Gonzales, 276 S.W.3d at 93–94. Pillard argues
                                                         6
if driving at twenty miles per hour in a forty-mile-per-hour zone was the only observation used to

support McLean’s reasonable suspicion that Pillard was intoxicated. However, there was also

evidence that Pillard (1) was leaving an area populated by bars serving alcoholic drinks (2) after

their normal closing time and (3) was weaving within his lane. We find that these articulable

facts, combined with the truck’s slow rate of speed, would lead an officer of McLean’s

experience and general knowledge to reasonably conclude that Pillard was driving while

intoxicated. See Curtis v. State, 238 S.W.3d 376, 380–81 (Tex. Crim. App. 2007); Barnes v.

Tex. Dept. of Pub. Safety, No. 02-13-00020-CV, 2013 WL 3325101, at **2–3 (Tex. App.—Fort

Worth Jun. 27, 2013, no pet.) (mem. op.) (citing McQuarters, 58 S.W.3d at 255 (holding that

officer’s suspicion that driver was falling asleep or intoxicated was reasonable based on

observations of driver driving slowly and twice crossing lane stripe even “assuming [officer’s]

testimony may not have established a reasonable suspicion that appellant had violated a traffic

law”)); State v. Alderete, 314 S.W.3d 469, 473 (Tex. App.—El Paso 2010, pet. ref’d) (police

officers trained to detect persons driving while intoxicated had reasonable suspicion to stop

driver suspected of DWI after observing driver swerving within a lane even though driver did not

violate any traffic regulations); see generally James, 102 S.W.3d 162.

        Based on the totality of the circumstances, we find that McLean had reasonable suspicion

to initiate the investigative stop. Consequently, we overrule Pillard’s point of error.




that his case is analogous to Gonzales. Yet, in distinguishing Gonzales from other DWI cases, the court clarified
that the officer did not suspect that Gonzales was intoxicated at the time of the investigative stop, and the only
reason for the stop was the alleged traffic violation. Gonzales, 276 S.W.3d at 94; see James, 102 S.W.3d at 171–72
(distinguishing investigative stops based on alleged traffic violations from stops based on suspicion of DWI).
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IV.    Conclusion

       We affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice




                                         CONCURRING OPINION

       The basis for the detention of Douglas Wayne Pillard was Officer Daniel McLean’s

observation that Pillard was driving a vehicle twenty miles per hour in a forty-mile-per-hour

zone, in an area where alcoholic beverages are served, and after the normal closing hour for bars.

According to McLean, Pillard’s vehicle also swerved or weaved within its own lane. If this were

a case of first impression for this Court, I would be inclined to hold that the stop was made on

speculation and hunch rather than reasonable suspicion.            Driving slower than the posted

maximum speed limit, standing alone, does not constitute reasonable suspicion. Delafuente v.

State, 414 S.W.3d 173, 178 (Tex. Crim. App. 2013). Here, there is no evidence that such driving

impeded the flow of any traffic. Further, I do not understand how driving within one lane of

traffic and not interfering with any other traffic, even if the vehicle deviates slightly from a due

straight course, authorizes a reasonable suspicion that one is intoxicated. What is left in this case

is that the officer, late at night, observed Pillard’s vehicle in an area where alcoholic beverages

are sold. Is that, alone, sufficient to justify a warrantless detention? I do not believe so.
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       However, I recognize that this Court previously held that very similar actions constituted

reasonable suspicion for detention. See Raffaelli v. State, 881 S.W.2d 714, 716 (Tex. App.—

Texarkana 1994, pet. ref’d) (observation of vehicle weaving within single lane of travel,

although not inherently illegal, sufficient to create reasonable suspicion for detention). Based on

this existing precedent, I concur in the judgment.




                                                 Jack Carter
                                                 Justice

Date Submitted:       August 13, 2014
Date Decided:         August 14, 2014

Do Not Publish




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