                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-07-013-CR


STEPHEN LEE DUNKELBERG                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

                                    ------------

     FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY

                                    ------------

                                  OPINION

                                    ------------

      A jury convicted Appellant Stephen Lee Dunkelberg of driving while

intoxicated (DWI), and the trial court sentenced him to six days’ confinement

and a $300.00 fine. In two points, Appellant appeals the trial court’s denial of

his motion to suppress the fruits of the stop of his vehicle and the detention of

his person. Because we hold that the trial court did not err, we affirm the trial

court’s judgment.
                                Background Facts

       Officer Duane Ford testified that on June 5, 2005, at approximately 1:30

a.m., he observed a vehicle being driven in the outside lane in the 6300 block

of Davis in North Richland Hills, Texas.      He testified that the vehicle was

“having a little bit of difficulty maintaining its lane” and weaved within its lane,

crossed the lane line, and struck several lines back and forth. When the driver

attempted to pull the vehicle over after Officer Ford activated his lights, the car

jumped the curb and stopped with a tire on the curb. This court has carefully

reviewed the videotape that Officer Ford made of the events he described and

determined that the videotape supports his testimony. After the stop, Appellant

was arrested for DWI. The trial court denied his motion to suppress, finding

that

       •     about 1:46 or 1:49 in the morning of June 5, 2005, Officer Ford
             saw Appellant’s car weaving within its lane;

       •     at one point it crossed over the dividing line into another lane;

       •     “and that was his basis or his reasonable suspicion for stopping the
             vehicle.”

The trial court also found that the vehicle did not stop immediately in response

to Officer Ford’s lights but continued for four or five blocks, pulled off to the

right after signaling, and then ran up over a curb in stopping.

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                               Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. 1 In reviewing the trial court’s decision, we do

not engage in our own factual review.2 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.3   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

(2) application-of-law-to-fact questions that turn on an evaluation of credibility

and demeanor.4 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




      1
     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).
      2
       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.).
      3
      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).
      4
       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).

                                         3
rulings on those questions de novo.5

      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.6 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 fact findings.7 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.8 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.9

      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


      5
       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.
      6
      Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006).
      7
          Kelly, 204 S.W.3d at 818–19.
      8
          Id. at 819.
      9
      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).

                                         4
specific, articulable facts.10 An officer conducts a lawful temporary detention

when he or she has reasonable suspicion to believe that an individual is

violating the law.11 Reasonable suspicion exists when, based on the totality of

the circumstances, the officer has specific, articulable facts that when

combined with rational inferences from those facts, would lead him to

reasonably conclude that a particular person is, has been, or soon will be

engaged in criminal activity. 12 This is an objective standard that disregards any

subjective intent of the officer making the stop and looks solely to whether an

objective basis for the stop exists.13

                         Stop Based on Reasonable Suspicion

      In his first point, Appellant contends that the stop was not based on

probable cause or reasonable suspicion.        In his second point, Appellant

contends that the trial court erred by denying his motion to suppress. Appellant

argues that although the officer saw the vehicle weave within its lane, cross

the lane line, and strike several lines back and forth, there was no evidence that



      10
      Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968);
Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
      11
           Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
      12
           Id. at 492–93.
      13
           Id. at 492.

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Appellant failed to drive in a single marked traffic lane when it was unsafe to

do so.14 That is, Appellant argues that he did not violate section 545.060 of

the transportation code because there was no evidence that his driving was

unsafe. He further argues that because there was no evidence that he failed

to drive in a single lane when it was unsafe to do so, the officer had no

reasonable suspicion to stop Appellant’s vehicle. Appellant relies on State v.

Cerny,15 State v. Tarvin,16 and Hernandez v. State. 17

      The Cerny court noted that the arresting officer did not articulate any

justification for stopping the defendant other than the officer’s suspicion that

the defendant had violated the traffic code, and while the traffic code required

the defendant’s actions to be unsafe, the record reflected mere weaving within

the lane and no indication that this weaving was unsafe.18 The Hernandez

court rejected the State’s contention that the officer’s observing the defendant

weaving within his own lane justified an investigatory detention because the

officer did not testify that, based on his experience, he subjectively suspected


      14
           See Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999).
      15
           28 S.W.3d 796 (Tex. App.—Corpus Christi 2000, no pet.).
      16
           972 S.W.2d 910 (Tex. App.—Waco 1998, pet. ref’d).
      17
           983 S.W.2d 867 (Tex. App.—Austin 1998, pet. ref’d).
      18
           Cerny, 28 S.W.3d at 801.

                                       6
the defendant of being intoxicated. 19 The Hernandez court additionally noted

that the officer did not testify to anything about the objective circumstances,

time, location, or the vehicle’s movement that would have led a reasonable

officer to suspect the driver of being intoxicated; rather, the officer testified

only that he was concerned about the driver’s well-being. 20 The Tarvin court

noted that, although the officer observed Tarvin’s weaving within his own lane

of traffic, the officer “never testified that he was conducting an investigatory

stop, nor did he testify to suspecting any criminal activity other than weaving

out of the lane.” 21

      Unlike the officers in those three cases, Officer Ford testified that, based

on his training and experience, he believed that Appellant might be driving while

intoxicated given the manner in which the vehicle was operated in conjunction

with the time of night. He testified that he stopped the vehicle “due to an

investigative stop because, as you well know, in the NHTSA manual, . . .

[weaving] is one of the sixteen clues that could be a possible intoxicated

driver.”




      19
           Hernandez, 983 S.W.2d at 870.
      20
           Id.
      21
           Tarvin, 972 S.W.2d at 912.

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      As the State points out, Officer Ford, like the officers in Walker v. State 22

and State v. Arend,23 testified that he conducted an investigatory stop

specifically because he believed there was a “possibility” Appellant was driving

while intoxicated.    Officer Ford’s dashboard video of Appellant’s driving

supports the officer’s testimony that Appellant was weaving from one set of

reflectors on the road to the other and that he crossed the lane divider at least

once. The video also supports Officer Ford’s testimony that Appellant was

slow to react to the officer’s emergency lights. Officer Ford further testified

that in his experience, intoxicated drivers are frequently encountered at that

time of night and that his training showed that weaving is one of the sixteen

clues that a driver is intoxicated.




      22
       No. 02-04-00336-CR, 2006 WL 349704, at *5 (Tex. App.—Fort Worth
Feb. 16, 2006, no pet.) (mem. op., not designated for publication).
      23
        No. 02-03-00336-CR, 2005 WL 994710, at *5 (Tex. App.—Fort Worth
April 28, 2005, pet. ref’d) (mem. op., not designated for publication).

                                         8
      Viewing the evidence in the light most favorable to the trial court’s ruling,

we hold that the trial court properly found that Officer Ford had reasonable

suspicion to stop Appellant and that the trial court properly denied his motion

to suppress. We overrule Appellant’s two points and affirm the trial court’s

judgment.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: DAUPHINOT, J.; CAYCE, C.J.; and LIVINGSTON, J.

PUBLISH

DELIVERED: October 2, 2008




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