                            NUMBER 13-11-083-CR

                           COURT OF APPEALS
                 THIRTEENTH DISTRICT OF TEXAS
                    CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                     Appellant,
                                         v.
RUBEN V. CASTILLO,                                                       Appellee.

              On appeal from the County Court at Law No. 4
                       of Nueces County, Texas.


                       MEMORANDUM OPINION
             Before Justices Rodriguez, Benavides, and Vela
                 Memorandum Opinion by Justice Vela
      This is a State’s appeal challenging the trial court’s order granting a motion to
suppress. By two issues, the State urges that: (1) the police officer had reasonable
suspicion to stop a vehicle driven by appellee Ruben V. Castillo; and (2) the police officer
properly detained Castillo under the community-care doctrine. We agree with the State's
first issue and reverse and remand.
                                      I. BACKGROUND
       Appellee Ruben V. Castillo was charged by complaint with the offense of operating
a motor vehicle in a public place while intoxicated. See TEX. PENAL CODE ANN. §
49.04(a) (West Supp. 2011). Officer King of the Nueces County Sheriff’s Department
testified at the motion to suppress hearing that Castillo was traveling westbound on FM
3386 at about midnight. She observed Castillo’s vehicle traveling approximately thirty
miles per hour in an area where the speed limit was sixty-five miles per hour, and Castillo
was traveling in the middle of both lanes. Castillo's vehicle was about 150 to 200 feet
from the officer when she made the stop. There were no other vehicles on the road at
that time. According to Officer King, Castillo ―was on the right-hand lane, and went over
into the left, back to the right, went over to the shoulder a tad bit and then back over to the
left and then he—he was driving in the middle of the two lanes going westbound.‖ Officer
King testified that the posted night-time speed limit where the stop occurred was sixty-five
miles per hour at night, but Castillo was traveling at about thirty miles per hour when the
stop occurred. According to Officer King, at one point, the vehicle went over partially
onto the shoulder of the road. At another point, the vehicle went into the left-hand lane.
       Officer King testified that she had been with the sheriff's department for about a
year, was a certified police officer, and had been working traffic as well as taking calls for
only a few months when the stop occurred. Officer King opined that she believed she

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could lawfully stop someone from driving too slow because ―at that point with everything
we had put together he’s—you know, he could be a danger to himself. We don’t know
what the situation is.‖ The trial court, after hearing evidence, granted Castillo’s motion to
suppress.
                                 II. STANDARD OF REVIEW
       In reviewing a trial court's ruling on a motion to suppress, an appellate court must
apply a standard of abuse of discretion and overturn the trial court's ruling only if it is
outside the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922
(Tex. Crim. App. 2011); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
The appellate court must apply a bifurcated standard of review, which gives almost total
deference to a trial court's determination of historic facts and mixed questions of law and
facts that rely upon the credibility of a witness, but we apply a de novo standard of review
to pure questions of law and mixed questions that do not depend on credibility
determinations. Martinez, 348 S.W.3d at 923; Guzman v. State, 955 S.W.2d 85, 87–89
(Tex. Crim. App. 1997).
       Officer King was the only witness to testify during Castillo's evidentiary hearing.
The historical facts elicited from the testimony are not at issue; the issue is whether these
uncontroverted facts created a reasonable suspicion such that the officer was justified in
initiating the stop. See Martinez, 348 S.W.3d at 923. Thus, we review the record de
novo. Id.




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                                   III. APPLICABLE LAW
       A law enforcement officer may stop and briefly detain a person for investigative
purposes on less information than is constitutionally required for a probable cause arrest.
Terry v. Ohio, 392 U.S. 1, 22 (1968). In order to stop or briefly detain an individual, an
officer must be able to articulate something more than an inchoate and unparticularized
suspicion or hunch. Id. at 27. The reasonableness must be examined in terms of the
totality of the circumstances. Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App.
2010); Woods v. State, 956 S.W.3d 33, 38 (Tex. Crim. App. 1997). The reasonableness
of the detention will be justified when the detaining officer has specific, articulable facts,
which, when taken in conjunction with rational inferences from those facts, lead the officer
to conclude that the person has been or soon will be engaged in criminal activity. Curtis
v. State, 238 S.W.3d 376, 380–81 (Tex. Crim. App. 2007).
                                       IV. ANALYSIS
       The trial court had before it uncontroverted evidence that the stop took place at
midnight; that Castillo was not only weaving within a single lane, but was in the right-hand
lane, and went over into the left, back to the right, went over to the shoulder, then back
over to the left; and finally that he was driving in the middle of the two lanes going
westbound. The testifying officer had not worked for the sheriff’s department for long,
but was a certified officer. The officer also noted that Castillo was going thirty miles per
hour in a sixty-five mile per hour zone.
       The trial court made findings that: (1) Officer King initiated the stop around
midnight; (2) the vehicle Castillo was driving at a "speed of about thirty mph and there was

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no minimal speed limit except the only speed limit was up to seventy mph during the day
time and sixty-five mph at night;" (3) Castillo was in the right-hand lane and he went over
into the left, back to the right, went on the improved shoulder, back to the left and was
driving in the middle of the two lanes going westbound; (4) Officer King was approaching
Castillo about 150 to 200 feet away when the officer saw him; (5) when the stop was
initiated, no other vehicles were on the road; (6) Castillo did not come close to causing an
accident at the time he was stopped; (7) the officer agreed that it was ―fair to say" that if
Castillo was about to turn on McKinzie Road he would have thus slowed down; and (8)
the court found no reasonable suspicion to make a stop because no hazard existed.
       Erratic or unsafe driving may furnish a sufficient basis for a reasonable suspicion
that the driver is intoxicated even absent evidence of violation of a specific traffic law.
See Cook v. State, 63 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd)
(holding that while erratic driving may not have constituted a traffic violation, it may
provide reasonable suspicion that he was driving while intoxicated); McQuarters v. State,
58 S.W.3d 250, 255 (Tex. App.—Fort Worth 2001, pet. ref'd) (stating that the State is not
required to prove a defendant violated a traffic law. Even if officer's testimony failed to
establish reasonable suspicion that the defendant violated a traffic law, it did raise
sufficient facts to justify a stop based on reasonable suspicion that he was intoxicated);
Gajewski v. State, 944 S.W.2d 450, 453 (Tex. App.—Houston [14th Dist.] 1997, no pet.)
(finding that although the defendant's driving may not have constituted a traffic violation,
that did not negate a stop based on reasonable suspicion that defendant was
intoxicated). Time of day is also a relevant factor in determining reasonable suspicion.

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Foster, 326 S.W.3d at 613.
       Here, under the applicable standard of review, there were articulable facts,
combined with rational inferences from those facts, based on the officer’s experience,
that justified a reasonable suspicion that Castillo was driving while intoxicated. See Ortiz
v. State, 930 S.W.2d 849, 853, 856 (Tex. App.—Tyler 1996, no pet.) (noting that officers'
observation of defendant's vehicle that weaved left, hit the grassy median, kicked up
some dirt and grass, and then continued to weave within his lane two or three times gave
them reasonable suspicion that he was driving while intoxicated); Fox v. State, 900
S.W.2d 345, 347 (Tex. App.—Fort Worth 1995, pet. dism'd) (holding that officer's
observation of defendant's vehicle's speed fluctuating between forty and fifty-five mph
and weaving within his own lane provided sufficient specific facts to create a reasonable
suspicion that some activity out of the ordinary was occurring or had occurred).
       Therefore, we conclude that the trial court erred in granting Castillo's motion to
suppress for lack of reasonable suspicion that he was driving while intoxicated.
Considering the uncontested facts, the totality of the circumstances, and the inferences
therefrom, we hold that the trial court erred in granting the suppression motion. We
sustain the State’s first issue.
       By issue two, the State argued that Castillo’s "peculiar" driving allowed the officer
to detain Castillo under the community care-taking doctrine. Because our ruling with
respect to the first issue is dispositive of this appeal, we will not address the State’s
second issue. See TEX. R. APP. P. 47.1.



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                                   V. CONCLUSION
       We reverse the trial court's judgment and remand for proceedings consistent with
this opinion.



                                                 ROSE VELA
                                                 Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of February, 2012.




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