                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-16-00446-CR

                                       Nicole Diana JOHNSEN,
                                               Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the County Court at Law No. 1, Bexar County, Texas
                                      Trial Court No. 479494
                            Honorable John D. Fleming, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Irene Rios, Justice

Delivered and Filed: February 8, 2017

AFFIRMED

           After the trial court denied her motion to suppress, Nicole Johnsen entered a plea of no

contest and was convicted of driving while intoxicated. On appeal, Johnsen argues the trial court

erred in denying her motion to suppress evidence. We affirm.

                                            BACKGROUND

           Following a traffic stop, Johnsen was arrested and charged with driving while intoxicated.

Johnsen moved to suppress the evidence against her, arguing the traffic stop was unlawful because

the arresting officer did not have reasonable suspicion to conduct a traffic stop.
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        At the suppression hearing, the arresting officer, Marcus Williams of the University of

Texas System Police, testified as follows. On December 30, 2014, at around 2:00 a.m., Williams

was on patrol in the medical center area of San Antonio, Texas. Williams was driving on a three-

lane roadway when he saw the car driven by Johnsen “drift to the point where it was straddling the

line that divided the lane. Approximately half the car was in the center lane, the other half was in

the right lane.” Johnsen’s car then made a u-turn. Williams followed Johnsen’s car, noticing that

as it approached an intersection it drifted out of its lane, the center lane, and into the left lane on

the three-lane roadway. At the time, another car was in the left lane just ahead of Johnsen’s car.

Shortly thereafter, Williams activated his lights to initiate a traffic stop.

        Williams further testified that he had been an officer for seven years and had received

special training in identifying intoxicated drivers. Based on Williams’s experience, crossing over

a lane marker can be an indicator that a driver is impaired. In deciding to stop Johnsen’s car,

Williams also considered the time of night and the location. A sports bar was located in the

immediate area, approximately three blocks from where Williams first observed Johnsen driving

her car. And, according to Williams, “our department patrols that area quite often and especially

in that area of Babcock around that time we’ve come across quite a few drunk drivers, intoxicated

drivers.”

        On cross-examination, Williams went on to testify that the first time Johnsen’s car drifted

out of its lane for just a couple of seconds and no other cars on the roadway were placed in danger.

The second time Johnsen’s car crossed the lane marker, it did not straddle the lane markers, but

“[h]er left wheels, her—both her front and back left wheels went into the left lane while she was

driving in the center lane.” The second time Johnsen crossed the lane markers was not captured on

the video camera in his patrol car. Williams was waiting for a vehicle to pass so he could complete

a u-turn and his patrol car was not in the proper position to record the maneuver. When Williams
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completed the u-turn and caught up with Johnsen’s car, it had stopped at a traffic light and its left

wheels were on the left-side lane markers but not over them. Williams decided to initiate the traffic

stop when he saw Johnsen’s car leave its designated lane for a second time.

            The video recording from Williams’s patrol car, which is consistent with Williams’s

testimony, was also admitted into evidence. The video recording shows that Williams observed

Johnsen’s car for a little more than two minutes before he initiated the traffic stop.

            After presenting Williams’s testimony and the video recording, the State argued that a

traffic violation need not have occurred for the officer to have had reasonable suspicion to justify

the stop of a vehicle. According to the State, the officer had “reasonable suspicion for DWI given

the totality of the circumstances.” Alternatively, the State argued that the traffic stop was lawful

because Johnsen committed a traffic offense by failing to maintain a single lane as required by

section 545.060 of the Texas Transportation Code. 1

            At the end of the suppression hearing, the trial court concluded that reasonable suspicion

existed to justify a stop for driving while intoxicated. The trial court also concluded that Johnsen

committed a traffic offense by violating section 545.060 of the Texas Transportation Code. The

trial court denied the motion to suppress and Johnsen appealed.

                                                     DISCUSSION

            On appeal, Johnsen argues the trial court erred in denying her motion to suppress evidence

because (1) she did not commit a traffic violation, and (2) the arresting officer lacked reasonable



1
    Section 545.060 of the Texas Transportation Code provides, in relevant part:

       (a) 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 ANN. § 545.060(a) (West 2011).

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suspicion to conduct a traffic stop for driving while intoxicated. We begin by addressing Johnsen’s

argument that the arresting officer lacked reasonable suspicion to conduct a traffic stop to

investigate whether Johnsen was driving while intoxicated.

       We review a reasonable suspicion determination by considering the totality of the

circumstances. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). “In conducting this

totality of the circumstances determination, we use a bifurcated standard of review: (1) giving

almost total deference to a trial court’s determination of historical facts and application of law to

fact questions that turn on credibility and demeanor, and (2) reviewing de novo application of law

to fact questions that do not turn upon credibility and demeanor.” Id. “In other words, we give

almost total deference to the trial court in determining what the actual facts are, and then we review

de novo whether those facts are sufficient to give rise to reasonable suspicion.” Id. When the trial

court does not make express findings of fact, we view the evidence in the light most favorable to

the trial court’s ruling, and we assume the trial court made implicit findings that are supported by

the record. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016).

       An officer may make a warrantless traffic stop if the “reasonable suspicion” standard is

satisfied. Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015). Reasonable suspicion

exists if the officer has specific articulable facts that, when combined with rational inferences from

those facts, would lead him to reasonably suspect that a particular person is, has been, or soon will

be engaging in criminal activity. Id. The standard, which is objective, disregards the subjective

intent of the officer and requires only some minimal level of justification for the stop. Brodnex,

485 S.W.3d at 437. However, the officer must have more than an inarticulable hunch or mere

good-faith suspicion that a crime is in progress. Id. A reasonable suspicion determination need not

rule out the possibility of innocent conduct. Jaganathan, 479 S.W.3d at 248. Additionally, the

reasonable suspicion standard accepts the risk that officers may stop innocent people. Id.
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         There is no requirement that a traffic law be violated before an officer has reasonable

suspicion to justify a stop of a vehicle. State v. Alderete, 314 S.W.3d 469, 473 (Tex. App.—El

Paso 2010, pet. ref’d). “[A]n officer may be justified in stopping a vehicle based upon a reasonable

suspicion of driving while intoxicated, which is a penal offense.” Id.

         In Curtis v. State, the appellant moved to suppress evidence, arguing the officers had

illegally stopped his vehicle without a warrant, probable cause, or reasonable suspicion. 238

S.W.3d 376, 377 (Tex. Crim. App. 2007). The trial court denied the motion to suppress. The Texas

Court of Criminal Appeals held that the trial court correctly denied the motion to suppress because

it could have reasonably concluded that the facts presented gave rise to reasonable suspicion to

justify an investigation for driving while intoxicated. Id. at 381. The facts in the present case are

similar to the facts presented in Curtis. In Curtis, the officers testified that prior to initiating the

traffic stop, they had observed the appellant’s car weaving in and out of its lane several times, over

a short distance, late at night. Id. The officers also testified that they had learned in training that a

driver’s weaving could indicate intoxicated driving. Id.

         Viewing the evidence in the present case in the light most favorable to the trial court’s

ruling, we assume the trial court made an implicit finding that Williams saw Johnsen’s car cross

the lane markers and drift into another lane twice in the span of a few minutes. 2 Although the video

recording does not clearly show Johnsen’s car drifting into another lane twice, Williams explained

in his testimony that only one of the maneuvers was fully captured on the video recording because

Williams was making a u-turn and the video camera in his patrol car was not in the proper position

to record the second time Johnsen’s car crossed the lane markers.




2
 Here, the trial court made only one express fact finding. This express finding is not relevant to the issue of whether
the officer had reasonable suspicion to stop Johnsen for driving while intoxicated.

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       The evidence also showed that Williams had received special training in identifying people

who were intoxicated. Williams indicated that in his experience, driving over the lane markers can

be an indicator that the driver is impaired. An officer’s training and experience in identifying

intoxicated drivers is relevant when considering the totality of the circumstances. See Curtis, 238

S.W.3d at 380-81. Furthermore, the place where Williams observed Johnsen was close to a sports

bar and other officers in the department had encountered intoxicated drivers in this area in the past.

An officer’s experience and knowledge that much of the traffic in an area in the early morning

hours comes from bars and clubs is relevant to a determination of reasonable suspicion to stop and

investigate for driving while intoxicated. See Villarreal v. State, No. 04-15-00593-CR, 2016 WL

5795207, at *3 (Tex. App.—San Antonio Oct. 5, 2016, no pet. h.) (not designated for publication).

       Deferring to the trial court’s findings of historical fact and considering the totality of the

circumstances, we conclude the trial court did not err in concluding that Williams had reasonable

suspicion to stop Johnsen to investigate whether she was driving while intoxicated. See Curtis, 238

S.W.3d at 381 (concluding that the facts gave rise to reasonable suspicion to investigate for driving

while intoxicated when the appellant’s car was weaving in and out of its lane several times, over

a short distance, late at night, and that the officers’ training taught that weaving could indicate

driving while intoxicated).

       Johnsen also argues the trial court erred in denying her motion to suppress evidence

because she did not commit a traffic offense. Because we have already concluded that Williams

had reasonable suspicion to believe Johnsen was driving while intoxicated, Williams had lawful

authority to stop and briefly detain Johnsen even if she did not commit a traffic offense under the

Texas Transportation Code. Therefore, we need not address Johnson’s argument that the trial court

erred in denying her motion to suppress because she did not commit a traffic offense. See TEX. R.

APP. P. 47.1 (requiring appellate court to hand down an opinion that is as brief as practicable but
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that addresses every issue raised and necessary to final disposition of the appeal); Villarreal, 2016

WL 5795207, at *4 (declining to address the appellant’s argument that he did not commit a traffic

offense after holding that the officer had reasonable suspicion to stop the appellant for driving

while intoxicated).

                                           CONCLUSION

       Because the trial court could have reasonably concluded that reasonable suspicion existed

to stop Johnsen for driving while intoxicated, it did not err in denying Johnsen’s motion to suppress

evidence. The trial court’s order denying Johnsen’s motion to suppress evidence is affirmed.

                                                      Karen Angelini, Justice

Do not publish




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