                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                 NO. 02-09-00424-CR


JOHN ROBERT WHIDDEN                                                 APPELLANT

                                           V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                           MEMORANDUM OPINION1
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                                   I. INTRODUCTION

      Appellant John Robert Whidden appeals his conviction for driving while

intoxicated.   In one point, Whidden complains that the trial court erred by

overruling his motion to suppress. Specifically, Whidden complains that the trial

court erred by finding that the arresting officer in this case had reasonable

suspicion to initiate a traffic stop. We will affirm.

      1
       See Tex. R. App. P. 47.4.
                                 II. BACKGROUND

      Following an anonymous tip and after observing Whidden driving, police

officer James Intia initiated a stop of Whidden’s vehicle at roughly 12:30 a.m.,

October 19, 2008. Whidden was arrested and later charged with driving while

intoxicated.   Whidden filed a motion to suppress, alleging that Intia lacked

reasonable suspicion to stop him.        After a hearing, the trial court denied

Whidden’s motion. Afterwards, Whidden entered a plea of guilty to the charge

against him but reserved his right to appeal the trial court’s ruling on the motion

to suppress.

      Intia testified at the suppression hearing. Intia said that he works as a

police officer for the City of Keller, Texas. He has been a police officer in Keller

for approximately five and a half years. According to Intia, he was working the

night shift when he received a dispatch call regarding Whidden’s SUV. The call

notified him that a white SUV, traveling at high speed, was heading westbound

on Keller Parkway. Intia was less than a quarter mile away at the time. As Intia

approached the intersection of South Main Street and Keller Parkway, he

observed ―a white SUV, which appeared to be traveling at a high rate of speed.‖

After initiating his overhead lights to circumvent traffic, Intia turned off his

overhead lights and briefly followed the SUV, which he described as a match for

the vehicle description he had been given by dispatch. Intia said that although

he did not track Whidden’s vehicle with a radar detector, ―from [his] training and

experience, it appeared that [Whidden] was going at a speed greater than the

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posted speed limit.‖ Intia said that he followed Whidden ―just to add reasonable

suspicion‖ to his stop and that he observed Whidden ―fail to maintain a single

lane and [Whidden] almost [strike] another vehicle as well.‖         Intia described

Whidden’s alleged failure to maintain a lane as a reaction to him having

approached the vehicle in front of him too quickly: ―[Whidden] was coming up fast

behind that vehicle in front of him, and he -- I saw his brakes go on and he

looked really close to the vehicle that was in front of him.       Then he kind of

swerved over to the right because his right tires went over the [solid white] line.‖

Intia said that Whidden nearly collided with the vehicle in front of him.

        By Intia’s account, Whidden had violated multiple traffic laws, including:

speeding, failure to maintain a single lane, and following the vehicle in front of

him too closely. When asked why he stopped Whidden, Intia said, ―Because of

his driving behavior. From my training and experience, it’s just one of the signs

of a possible intoxicated driver.‖ On cross-examination, Intia maintained that the

reason he initiated a stop of Whidden’s vehicle was because of Whidden’s erratic

driving, including the multiple traffic violations he allegedly observed Whidden

engage in. The State also played a dashboard video for the trial judge from

Intia’s in-car camera showing Intia following Whidden briefly before initiating the

stop.

        After Whidden’s plea, the trial court assessed punishment at ten years’

confinement but suspended imposition of the sentence and placed Whidden on

community supervision for a period of four years. This appeal followed.

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                                   III. DISCUSSION

      In his sole point, Whidden argues that the trial court erred by denying his

motion to suppress. Specifically, Whidden argues that the trial court erred by

finding that Intia had reasonable suspicion to stop him. We disagree.

      A.     Standard of Review

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

bifurcated standard of review.      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).

In reviewing the trial court’s decision, we do not engage in our own factual

review. 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.). 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. 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). 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.

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). But when application-of-law-to-fact questions do not turn on the credibility

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and demeanor of the witnesses, we review the trial court’s rulings on those

questions de novo. 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.

      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. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). 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. Kelly, 204 S.W.3d at 818–19.

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.

Id. at 818.

      When the record is silent on the reasons for the trial court’s ruling, or when

there are no explicit fact findings and neither party timely requested findings and

conclusions from the trial court, we imply the necessary fact findings that would

support the trial court’s ruling if the evidence, viewed in the light most favorable

to the trial court’s ruling, supports those findings. State v. Garcia-Cantu, 253

S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then

review the trial court’s legal ruling de novo unless the implied fact findings

supported by the record are also dispositive of the legal ruling.        Kelly, 204

S.W.3d at 819.



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      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. 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).

      B.    Legality of the Stop

      The Fourth Amendment2 protects against unreasonable searches and

seizures. U.S. Const. amend. IV. To suppress evidence because of an alleged

Fourth Amendment violation, the defendant bears the initial burden of producing

evidence that rebuts the presumption of proper police conduct. Torres v. State,

182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005). A defendant satisfies this burden by establishing

that a search or seizure occurred without a warrant. Torres, 182 S.W.3d at 902;

Ford, 158 S.W.3d at 492.      Once the defendant has made this showing, the

burden of proof shifts to the State, which must then establish that the government

agent conducted the search or seizure pursuant to a warrant or that the agent

acted reasonably. Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492.

      2
        Where, as in this case, the appellant has not separately briefed state and
federal constitutional claims, we assume that the appellant claims no greater
protection under the state constitution than that provided by the federal
constitution. Varnes v. State, 63 S.W.3d 824, 829 (Tex. App.—Houston [14th
Dist.] 2001, no pet.). Therefore, we will analyze Whidden’s claim solely under
the Fourth Amendment of the United States Constitution, following guidelines set
by the United States Supreme Court in interpreting the Fourth Amendment. See
State v. Guzman, 959 S.W.2d 631, 633–34 (Tex. Crim. App. 1998).

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      The Supreme Court has held that a detention is reasonable under the

Fourth Amendment if the government agent reasonably suspects a person of

engaging in criminal activity. 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).

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 the officer to reasonably conclude that a

particular person is, has been, or soon will be engaged in criminal activity. Ford,

158 S.W.3d at 492–93.         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. Id. at 492.

      It is well settled that a traffic violation committed in an officer’s presence

authorizes an initial stop. Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim.

App. 1982) Furthermore, an officer is justified in stopping a driver based upon a

reasonable suspicion of driving while intoxicated, even in the absence of a traffic

violation. James v. State, 102 S.W.3d 162, 172 (Tex. App.—Fort Worth 2003,

pet. ref’d); McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.—Fort Worth

2001, pet. ref’d) (stop justified based on reasonable suspicion that defendant,

who crossed the left lane stripe twice, was intoxicated); Cook v. State, 63 S.W.3d

924, 929 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (reasoning that even

if defendant’s driving did not constitute a traffic violation, it did provide reasonable

suspicion that the defendant was driving while intoxicated). To be sure, erratic or

                                      7
unsafe driving may furnish a reasonable suspicion that the driver is intoxicated,

regardless of any evidence regarding whether a violation of a specific traffic law

occurred. Cook, 63 S.W.3d at 929; McQuarters, 58 S.W.3d at 255; Fox v. State,

900 S.W.2d 345, 347 (Tex. App.—Fort Worth 1995, pet. dism’d) (driver’s conduct

sufficient to justify stop based upon reasonable suspicion that something out of

the ordinary was occurring, even though no single act was illegal).

      In this case, Intia testified that although he observed Whidden commit

multiple traffic violations, the reason he stopped Whidden was ―[b]ecause of his

driving behavior. From my training and experience, it’s just one of the signs of a

possible intoxicated driver.‖ Intia testified that he observed Whidden driving too

fast, following another vehicle too closely, and that Whidden’s excessive speed

and failure to maintain a proper distance from the vehicle in front of him caused

him to forcefully apply his brakes and swerve over the shoulder’s solid-white line.

Furthermore, Intia’s attention toward Whidden was based on information supplied

by an anonymous citizen informant whose information about the vehicle, the

driver’s excessive speed, and location were verified when Intia spotted

Whidden’s SUV. See Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App.

2005), cert. denied, 546 U.S. 1150 (2006) (―The factual basis for stopping a

vehicle need not arise from the officer’s personal observation, but may be

supplied by information acquired from another person.‖). Additionally, this court

has reviewed Intia’s dashboard video of Whidden’s driving. The video supports

Intia’s testimony that Whidden followed the vehicle in front of him too closely—

                                    8
forcing him to suddenly apply his brakes and weave over the shoulder stripe.

Viewing the facts in a light most favorable to the trial court’s ruling and viewing

the totality of the circumstances, we conclude that Intia possessed specific,

articulable facts that when combined with rational inferences from those facts,

would have led him to reasonably conclude that Whidden was engaged in the

criminal activity of driving while intoxicated. See Ford, 158 S.W.3d at 492–93.

Thus, the trial court did not err by denying Whidden’s motion to suppress. We

overrule Whidden’s sole point.

                                 IV. CONCLUSION

      Having overruled Whidden’s sole point, we affirm the trial court’s judgment.




                                            BILL MEIER
                                            JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 10, 2011




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