                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                          No. 07-15-00216-CR


                            JAMES WILLIAM NOBILE, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                           On Appeal from the County Court at Law No. 1
                                      Randall County, Texas
               Trial Court No. 2013-0698-1, Honorable James W. Anderson, Presiding

                                        November 24, 2015

                                  MEMORANDUM OPINION
                       Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       Appellant, James William Nobile, was arrested and charged by complaint and

information with the offense of driving while intoxicated (DWI),1 enhanced by one prior

conviction.2 Appellant filed a motion to suppress the evidence that alleged the arresting

officer lacked reasonable suspicion to initiate a traffic stop of appellant. The trial court

conducted a hearing on the motion to suppress and denied the motion. Thereafter,


       1
           See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2014).
       2
           See id. § 49.09(a) (West Supp. 2014).
appellant entered a plea of guilty to the charge of DWI, and the State waived its

enhancement provision.


          Appellant was found guilty and sentenced to nine days’ confinement in the

Randall County Detention Facility and fined $1,000 plus costs of court. Appellant has

perfected his appeal and, through a single issue, contends that the trial court committed

reversible error in denying his motion to suppress. Disagreeing with appellant, we will

affirm.


                              Factual and Procedural Background3


          Appellant was stopped on IH-27 at approximately mile post 111 shortly before

the Canyon Expressway merges into the interstate. The officer who stopped appellant,

James Lee Spicer, a Texas Department of Public Safety trooper, had followed appellant

from FM 1541 to FM 3331 and finally onto IH-27. FM 3331 is a two-lane highway.

While following appellant on FM 3331, Spicer observed appellant cross the center stripe

two or three times. At that time, there was no oncoming traffic, and Spicer decided not

to stop appellant but continued to follow him. After appellant turned north onto IH-27,

Spicer followed and again observed appellant cross the center stripe dividing the two

northbound lanes on three occasions. Spicer testified that, because the appellant was

approaching the Canyon Expressway, the traffic was becoming heavier. It was at that

time that Spicer decided to initiate a stop of appellant.


          During cross-examination at the suppression hearing, Spicer testified that he

stopped appellant because he violated section 545.060 of the Texas Transportation

          3
         Inasmuch as appellant does not contest the sufficiency of the evidence, we will only discuss the
evidence regarding the initial stop of appellant.

                                                   2
Code (failure to drive in a single-marked lane). See TEX. TRANSP. CODE ANN. § 545.060

(West 2011). Spicer indicated that the traffic violation was failing to drive in a single

marked lane while on IH-27. However, on redirect-examination, Spicer further testified

that the traffic violation gave him reason to stop appellant but that, in addition, he was

concerned that appellant was distracted, sleepy, or possibly intoxicated because of his

inability to drive in his lane of traffic.


       After hearing the evidence, the trial court denied the motion to suppress.

Subsequently, the trial court filed findings of fact and conclusions of law and amended

findings of fact and conclusions of law. In it findings, the trial court found that Spicer

had followed appellant on FM 3331 and observed appellant drive over the center stripe

two and, possibly, three times; that Spicer continued to follow appellant on IH-27 and

observed appellant drive across the center stripe on three or more occasions; and that

appellant’s driving on IH-27 was corroborated by the in-car DVD. In the conclusions-of-

law portion, the trial court concluded that Spicer had reasonable suspicion to initiate a

vehicular stop on IH-27.         The trial court then filed amended findings of fact and

conclusions of law. In the amended conclusions, the trial court stated that, “[g]iving due

credit to Trooper Spicer’s experience in the field derived from his eleven years of

enforcing traffic laws, his observations made and inferences of possible intoxication

reached regarding the fact of [appellant]’s persistent failure to maintain control of his

vehicle in a single lane of traffic for a span of four miles and his overall credibility, this

Court finds that Trooper Spicer had reasonable suspicion to stop [appellant]’s vehicular

(sic) on Interstate 27 on September 2, 2013[,] for driving while intoxicated.”




                                              3
       Appellant’s single issue on appeal contends that the trial court abused its

discretion by denying appellant’s motion to suppress because the trial court failed to

properly apply the applicable law to the facts presented. We disagree and will affirm.


                                   Standard of Review


       A trial court’s denial of a motion to suppress is reviewed under a bifurcated

review process. See Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

We review the trial court’s factual findings for an abuse of discretion. Id. A trial court’s

application of the law to the facts is reviewed de novo. Id.


       In our case, we will review the trial court’s rulings on the questions of reasonable

suspicion to detain appellant under the bifurcated standard of review. See id. We give

almost total deference to the trial court on questions of credibility and historical fact.

See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The trial court is

the sole trier of fact and judge of the credibility of the witnesses and the weight to be

given their testimony. See id. When, as here, the trial court makes explicit findings of

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

to the trial court’s ruling, supports the fact findings. State v. Priddy, 321 S.W.3d 82, 86

(Tex. App.—Fort Worth 2010, pet. ref’d) (citing State v. Kelly, 204 S.W.3d 808, 818–19

(Tex. Crim. App. 2006)).


                                      Applicable Law


       The Fourth Amendment to the United States Constitution and Article I, Section 9,

of the Texas Constitution protect individuals from unreasonable searches and seizures.

State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013). Article 1.06 of the Code of

                                             4
Criminal Procedure provides that the people shall be secure from all unreasonable

seizures or searches. TEX. CODE CRIM. PROC. ANN. art. 1.06 (West 2005).4 Thus,

under Texas law, searches and seizures must be reasonable.


        “[A] law enforcement officer’s reasonable suspicion that a person may be

involved in criminal activity permits the officer to stop the person for a brief time and

take additional steps to investigate further.” State v. Kerwick, 393 S.W.3d 270, 273

(Tex. Crim. App. 2013) (quoting Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S.

177, 185, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004)). “An officer must have reasonable

suspicion that some crime was, or is about to be, committed before he may make a

traffic stop.”   State v. Duran, 396 S.W.3d 563, 568 (Tex. Crim. App. 2013) (citing

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011)). Thus, a traffic

stop based upon a reasonable suspicion that some crime was, or is about to be,

committed does not violate Texas law.                See id.     An officer’s determination about

reasonable suspicion must be supported by “specific and articulable facts.” See id. at

568–69 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).

In determining whether the officer had specific and articulable facts, a reviewing court

uses an objective standard. See id. at 569. That is, considering only the information

actually available to the officer at the moment of the seizure or search, would a man of

reasonable caution be warranted to believe that the action taken was appropriate? See

id.   A reasonable suspicion determination is made by considering the totality of

circumstances. See Ford v. State, 158 S.W.3d 488, 492–93 (Tex. Crim. App. 2005).



        4
           Further reference to the Texas Code of Criminal Procedure will be by reference to “art. ___” or
“article ____.”

                                                    5
                                          Analysis


       The record before the Court supports the proposition that Spicer observed erratic

driving by appellant. The driving observed was the inability of appellant to drive within

his lane of travel. As the trial court found in its findings of fact, the officer observed at

least five or six incidents where appellant’s vehicle crossed over either the center stripe

or his lane’s dividing stripes. The fact that there was no collision or near-miss is not the

touchstone of the reasonableness of the stop by Spicer. Erratic and unsafe driving may

furnish sufficient basis for reasonable suspicion.      See Halford v. State, No. 07-08-

00338-CR, 2010 Tex. App. LEXIS 4918, at *10 (Tex. App.—Amarillo June 25, 2010,

pet. ref’d) (mem. op., not designated for publication) (citing James v. State, 102 S.W.3d

162, 171-72 (Tex. App.—Fort Worth 2003, pet. ref’d)).            When the totality of the

circumstances of appellant’s driving are viewed, see Ford, 158 S.W.3d 492, we are

confident in saying that Spicer had specific and articulable facts upon which to base his

decision to stop appellant. See Duran, 396 S.W.3d at 568–69. Thus, the trial court’s

findings of fact and conclusions of law are supported by the record. See Priddy, 321

S.W.3d at 86.      Therefore, the trial court did not abuse its discretion in denying

appellant’s motion to suppress. See Turrubiate, 399 S.W.3d at 150.


       Appellant seems to place a great deal of emphasis on the fact that Spicer’s

testimony shows that there was no near-accident, which according to his theory, means

that there was no traffic violation. We again point out that the trial court had all of

Spicer’s testimony before him that included testimony about five or six instances of

failure to drive within appellant’s lane of travel. As such, there was, at the minimum, a



                                             6
pattern of erratic driving that provided the reasonable suspicion necessary for Spicer to

initiate a stop of appellant.


       Next, appellant complains that, when Spicer testified, he said he was relying only

on the driving of appellant on IH-27 to provide the basis for the initial stop. Such a

statement is true, if one does not consider Spicer’s testimony on redirect examination.

There, Spicer testified that he was relying on the totality of the driving he observed,

which is the proper measure for determination of reasonable suspicion to stop. See

Ford, 158 S.W.3d 492.


       Finally, appellant indicates that, since Spicer testified on cross-examination that

he was stopping appellant for the traffic offense of failure to drive in a single marked

lane and because there was no testimony that the failure of appellant to stay totally

within his lane was unsafe, the stop cannot be justified. See TEX. TRANSP. CODE ANN. §

545.060. Such position ignores the reality that the officer’s subjective reason for making

a stop is not the controlling factor; rather, the totality of the facts are viewed from the

viewpoint of an objective standard, which is controlling on the issue of reasonable

suspicion to stop. See Duran, 396 S.W.3d at 568. As we have previously determined,

the totality of the facts, when viewed in an objective manner, support the legitimacy of

Spicer’s stop of appellant. See Ford, 158 S.W.3d 492. Appellant’s issue to the contrary

is overruled.




                                            7
                                      Conclusion


      Having overruled appellant’s sole issue, we affirm the trial court’s judgment.




                                         Mackey K. Hancock
                                             Justice


Do not publish.




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