                                          NO. 07-08-0287-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL E

                                     DECEMBER 11, 2008
                               ______________________________

                                   WILLIAM DUNCAN ELLISON,

                                                                           Appellant

                                                     v.

                                      THE STATE OF TEXAS,

                                                          Appellee
                            _________________________________

                FROM THE COUNTY COURT AT LAW OF HOOD COUNTY;

                    NO. 39551; HON. VINCENT J. MESSINA, PRESIDING
                           _______________________________

                                    Memorandum Opinion
                              _______________________________


Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

        William Duncan Ellison appeals his conviction, based upon a plea of no contest, for

the offense of driving while intoxicated. He complains of the trial court’s failure to sustain

his motion to suppress because the officer lacked probable cause or reasonable suspicion

to stop his vehicle. We affirm the judgment.



        1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent. Tex. Gov’t Code
Ann. §75.002(a)(1) (Vernon 2005).
       Law

       We review a ruling upon a motion to suppress by affording great deference to the

trial court’s interpretation of historical facts. Ford v. State, 158 S.W.3d 488, 493 (Tex.

Crim. App. 2005). This deference entails both the trial court’s authority to assess the

credibility of the witnesses and the authority to disbelieve or believe controverted

testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). However, similar

deference is not afforded the trial court’s application or interpretation of the law. Ford v.

State, 158 S.W.3d at 493. We review that de novo. Id.

       Application of Law

       Appellant challenges the trial court’s findings that the “weaving” of his vehicle was

a valid basis for a traffic stop and that he exceeded the speed limit. We reject the

challenge given the totality of the circumstances appearing in the record before us.

       Contained in that record is the testimony of Lt. Steve Smith with the Hood County

Sheriff’s Office. He stated that 1) he had been a certified peace officer thirteen years, 2)

he has made many traffic stops, 3) he had training in DWI detection, 4) he had stopped

intoxicated drivers on many occasions, 5) he observed a white Ford pickup driven by

appellant cross the line dividing the two west bound lanes of Highway 377 as well as the

shoulder or fog line, 6) this weaving over the lines occurred several times during the period

in which he observed appellant, 7) based on his experience, crossing the center and fog

lines indicated that the driver was possibly intoxicated, 8) no obstacles were in the road to

explain the weaving, 9) appellant appeared to be speeding at times, as determined by the

officer pacing the truck, and 10) appellant was endangering at least himself. Furthermore,



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this occurred at around 3:48 a.m., and though traffic was not heavy, there were other

vehicles on the road.

       Circumstances similar to those we listed above have been held by the Court of

Criminal Appeals to justify not only a “‘rational inference’” that the vehicle’s driver was

intoxicated but also a stop. See Curtis v. State, 238 S.W.3d 376, 380-81 (Tex. Crim. App.

2007) (holding that there was reasonable suspicion to stop a vehicle for suspicion of driving

while intoxicated when the vehicle was observed weaving in and out of lanes over a short

distance at 1:00 a.m., the officer had received specialized training in signs of driving while

intoxicated, and part of his training was that weaving was a possible indication of

intoxication). Moreover, the opinions cited by appellant to the contrary were not issued by

the Court of Criminal Appeals. Thus, we must follow the decision of our State’s highest

criminal court and affirm the trial court’s judgment.



                                                  Per Curiam

Do not publish.




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