                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00010-CR
                           ____________________

                  STUART WAYNE CRUMPTON, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                   On Appeal from the County Court at Law
                             Polk County, Texas
                         Trial Cause No. 2013-0204
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Stuart Wayne Crumpton pleaded guilty to possession of a dangerous drug, a

misdemeanor. See Tex. Health & Safety Code Ann. § 483.001(2) (West Supp.

2014), § 483.041 (West 2010). The trial court found the evidence sufficient to find

Crumpton guilty, but deferred adjudication of guilt, and placed him on deferred

adjudication community supervision for eight months. In two appellate issues,

Crumpton argues that the trial court erred (1) in denying his motion to suppress

because no evidence supports the trial court’s finding that the officer who initiated

                                         1
the traffic stop had reasonable suspicion to believe that Crumpton had violated the

law, and (2) in assessing attorney’s fees. We overrule issue one, sustain issue two,

and affirm the judgment as modified.

                                MOTION TO SUPPRESS

      Crumpton filed a motion to suppress challenging the legality of the traffic

stop and arguing that “[n]either the facts in the [probable cause] affidavit nor the

facts in the offense report indicate that [Crumpton]’s driving was unsafe[.]”

Crumpton also asserts in his motion that his consent to search his vehicle “does not

vitiate the unreasonable seizure, which requires the suppression of all evidence

found as a result[]” thereof.

      Officer Christopher Lima with the Polk County Sheriff’s Office testified at

the suppression hearing. At approximately 2:30 p.m. one afternoon in March 2013,

Lima was on patrol and observed Crumpton’s vehicle, with its “left blinker” on,

swerve away from oncoming traffic “[a]nd back into the lane” while driving south

on Highway 146, a two-lane highway. Lima then followed him for approximately

two miles. According to Lima, over those two miles Crumpton partially “crossed

over the lane of traffic and came back into his lane on more than one occasion[,]”

and had his left turn signal on for “the whole two miles[,]” and never made a turn.

Lima clarified at the suppression hearing that although his offense report states that


                                          2
Crumpton drove “[o]ut of the lane of travel and off the road, and back into the

southbound lane of travel” (which Lima admitted could be construed as describing

Crumpton swerving out of the lane of travel only once), Crumpton’s “left tire

crossed the yellow line” in the middle of the highway more than once and “he

swerved to the left and right.”

      Officer Lima activated his “emergency equipment” and initiated a traffic

stop based on what he believed was a traffic violation, Crumpton’s failure to

maintain a single lane. 1 Officer Lima testified that when he decided to stop

Crumpton, Lima suspected that Crumpton was possibly driving while intoxicated

“[b]ased on the coming in and out of the lane of travel, back into the lane of travel,

inattentive to the blinker on, things of that nature[,]” and Lima “wanted to make

sure [Crumpton] was okay to drive.” Lima testified that Crumpton told Lima that

Crumpton’s tire was causing his vehicle to veer right, and he sometimes forgets to

turn his blinker off. Based on his training and experience, Lima did not believe

Crumpton’s explanation.




      1
       Section 545.060 of the Texas Transportation Code provides: “(a) An
operator on a roadway divided into two or more clearly marked lanes for traffic:
(1) shall drive as nearly as practical entirely within a single lane; and (2) may not
move from the lane unless that movement can be made safely.” Tex. Transp. Code
Ann. § 545.060(a) (West 2011).

                                          3
         Officer Lima observed that Crumpton’s eyes were “extremely bloodshot”

and that, when asked for his driver’s license, Crumpton’s hand was shaking.

Officer Lima asked Crumpton to get out of his vehicle “[f]or officer safety

reasons[,] . . . to speak with him some more in reference to . . . his mannerism and

his walk and whatnot, to make sure he was not too intoxicated to drive.” Lima did

not smell alcohol on Crumpton’s breath, and Crumpton’s speech was not slurred

and he did not stumble when he walked. Lima did not administer any field sobriety

tests.

         Crumpton voluntarily consented to the search of his person and his vehicle.

The search of the vehicle lasted approximately nine minutes. Officer Lima

retrieved six prescription pills from the center console of the vehicle and a

substance that appeared to be marijuana. Officer Lima testified that he read

Crumpton his Miranda rights and then asked him if the marijuana and prescription

pills belonged to him. Crumpton admitted the marijuana belonged to him. He

explained that the prescription pills were not his and that he had been given them,

and he admitted that he did not have a prescription for the pills. Lima arrested

Crumpton and charged him with possession of a dangerous drug but “held the

possession of marijuana and forwarded it to the [District Attorney’s] office for

further prosecution if need be[.]”


                                          4
      The trial court denied Crumpton’s motion to suppress and made findings of

fact and conclusions of law. The trial court’s findings of fact pertinent to the issues

on appeal are that Lima observed the vehicle “veer from a single lane of traffic[,]”;

that Lima “observed the vehicle for a distance of approximately 2 miles during

which time the vehicle swerved or veered outside its lane of traffic multiple times

and the turn signal of the vehicle remained on” but the vehicle made no turn; and

that after Lima initiated the stop, Crumpton exited the vehicle and “did not exhibit

indications of impairment or alcohol or drug use.” The trial court concluded that

Lima had reasonable suspicion to believe Crumpton had violated the law, the stop

and period of detention were reasonable, Crumpton gave consent to search his

vehicle, the marijuana and drugs located during the search should not be

suppressed, and Crumpton’s arrest was a valid warrantless arrest.

      In issue one, Crumpton asserts that “[t]he record is devoid of evidence to

support any finding that Detective Lima had reasonable suspicion to detain Mr.

Crumpton[,]” and therefore, “all physical evidence and statements obtained as a

result of the unreasonable seizure should be suppressed.” According to Crumpton,

Officer Lima did not have reasonable suspicion to stop Crumpton for failure to

maintain a single lane or for driving while intoxicated, Detective Lima did not

have probable cause to stop Crumpton for his failure to turn off his blinker, and


                                          5
Crumpton’s consent to search his vehicle “does not cure Detective Lima’s illegal

seizure[.]” Crumpton also challenges the trial court’s finding of fact that “[t]he

Officer observed the vehicle for a distance of approximately 2 miles during which

time the vehicle swerved or veered outside its lane of traffic multiple times and the

turn signal of the vehicle remained on. The vehicle made no turn.” Crumpton

contends the record does not support the finding that his vehicle “swerved or

veered outside its lane of traffic multiple times[,]” and that Lima did not indicate

“why he found this movement of the left tire over the yellow line to be unsafe.”

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

standard of review. 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.

We give almost total deference to the trial court’s determination of historical facts,

particularly when the trial court’s fact findings are based on an evaluation of

credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App.

2010). The same deference is afforded the trial court with respect to its rulings on

the application of the law to questions of fact and to mixed questions of law and

fact, if resolution of those questions depends on an evaluation of credibility and

demeanor. Id. For mixed questions of law and fact that do not fall within that

category, a reviewing court conducts a de novo review. Id.


                                          6
      At a suppression hearing, the trial court is the exclusive trier of fact and

judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002). A trial court may choose to believe or to disbelieve all or

any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000). We must uphold the trial court’s ruling on a motion to suppress if that

ruling was supported by the record and was correct under any theory of law

applicable to the case, even if the trial court gave the wrong reason for its ruling.

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied,

541 U.S. 974 (2004).

      A police officer can stop and briefly detain a person for investigative

purposes if the officer has a reasonable suspicion supported by articulable facts

that criminal activity may be afoot, even if the officer lacks evidence rising to the

level of probable cause. Terry v. Ohio, 392 U.S. 1, 29 (1968); Woods v. State, 956

S.W.2d 33, 35 (Tex. Crim. App. 1997). We must examine the reasonableness of a

temporary detention in light of the totality of the circumstances. See Woods, 956

S.W.2d at 38. For reasonable suspicion to exist, it is not necessary that an actual

violation occurred; rather, all that is necessary is that “the officer reasonably

believed that a violation was in progress.” Green v. State, 93 S.W.3d 541, 545

(Tex. App.—Texarkana 2002, pet. ref’d); see also Carmouche v. State, 10 S.W.3d


                                         7
323, 328 (Tex. Crim. App. 2000). In determining whether an officer’s suspicion

was reasonable, we employ an objective standard: whether the facts available to

the officer at the moment of detention warrant a person of reasonable caution to

believe that the action taken was appropriate. See Terry, 392 U.S. at 21-22;

Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.—Austin 1998, pet. ref’d)

(citing Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997)). There is no

requirement that a traffic regulation has been or is about to be violated in order for

an officer to have reasonable suspicion sufficient to justify a stop of a vehicle. See

Cook v. State, 63 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.] 2002, pet.

ref’d). An officer may be justified in stopping a driver based upon a reasonable

suspicion of driving while intoxicated. Id.; see also Hernandez, 983 S.W.2d at 872

(officer had reasonable suspicion to stop a driver who may have been driving while

intoxicated where the driver had been weaving between lanes, although the

observed conduct may not have been “an inherently illegal act”).

      Crumpton asserts that Lima failed to explain how many times Crumpton

swerved, and that because Lima’s testimony established only that the swerve was

“partial” (meaning, according to Crumpton, that only his left tire crossed the

yellow line), the record does not support the trial court’s finding that Crumpton’s

vehicle “swerved or veered outside its lane of traffic multiple times.” At the


                                          8
suppression hearing, Lima testified that he initially observed Crumpton swerve

away from incoming traffic “[a]nd back into the lane” and then, while Lima

followed Crumpton for approximately two miles, Lima observed Crumpton

partially cross “over the lane of traffic and c[ome] back into his lane on more than

one occasion.” We give deference to the trial court’s finding of fact that

Crumpton’s vehicle “swerved or veered outside its lane of traffic multiple times[,]”

as that finding is supported by the record. See Wade, 422 S.W.3d at 666.

      Crumpton relies on Peters v. Texas Department of Public Safety, 404

S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2013, no pet.), in support of his

assertion that “[t]o articulate reasonable suspicion, the hearing record should

demonstrate how an officer’s training and experience combined with

‘characteristics of the area’ and the time of day or night supported his conclusion

that a person was driving while intoxicated.” Peters is factually distinguishable,

and Crumpton misconstrues that opinion.

      In Peters, Peters appealed from a suit for judicial review in which the trial

court affirmed the administrative law judge’s order granting Texas DPS’s petition

to suspend her driver’s license for ninety days. Id. at 2. At the hearing, the DIC-23,

signed and sworn by Deputy Kerr, was introduced into evidence. Id. Under the

portion of the form designated “Reasonable suspicion to make contact,” Deputy


                                          9
Kerr stated “[w]hile on patrol I observed the above vehicle traveling 40 mph in a

65 mph posted zone.” Id. Deputy Kerr, who pulled over and arrested Peters, did

not testify at the hearing. Id. The ALJ issued an administrative decision and an

order authorizing DPS to suspend Peter’s driving privileges, and the trial court

affirmed the ALJ’s decision. Id. at 2-3. Arguing that the trial court erred because

the ALJ’s finding that Deputy Kerr had reasonable suspicion to stop her was not

reasonably supported by substantial evidence, Peters appealed to the Fourteenth

Court of Appeals. Id. at 2.

      In Peters, DPS contended that there was substantial evidence in the record to

show that Deputy Kerr had reasonable suspicion to stop Peters because he

suspected that she was driving while intoxicated and that, in the alternative, Peters’

detention was nevertheless lawful because Deputy Kerr detained her as part of his

“community caretaking” responsibility. Id. at 4. In concluding that the ALJ’s

finding that Deputy Kerr had reasonable suspicion to stop Peters was not

reasonably supported by substantial evidence, the court of appeals distinguished

two cases relied on by DPS. Id. at 4-5. In those cases, the Court of Criminal

Appeals found that, based on the totality of the circumstances, there was

substantial evidence in the record to show that the officer had reasonable suspicion

to stop the defendant for driving while intoxicated. Id. at 4-5, 7 (distinguishing


                                         10
Foster v. State, 326 S.W.3d 609, 610-11 (Tex. Crim. App. 2010) and Curtis v.

State, 238 S.W.3d 376, 380-81 (Tex. Crim. App. 2007)). The court in Peters noted

that in Foster, the officer initiating the stop testified that he decided to detain

Foster “because he thought Foster’s driving was ‘unsafe and—due to where [they]

were downtown and the time of night, [the officer] was concerned that maybe

[Foster] was impaired.’” Peters, 404 S.W.3d at 5 (quoting Foster, 326 S.W.3d at

610-11). The court in Peters also noted that in Curtis, two state troopers who

detained Curtis testified they observed Curtis weaving in and out of his lane of

traffic over a short distance at 1 a.m., and that based on their training in detecting

DWIs, they knew that a driver’s weaving in and out of a lane was a possible

indication that the driver was intoxicated. Id. (citing Curtis, 238 S.W.3d at 377,

380).

        In Peters, Deputy Kerr did not testify and the court of appeals explained that

“the only relevant evidence in the record is that Peters was observed driving slowly

on the Sam Houston Tollway at 1:40 in the morning[,]” which was from the DIC-

23 form. Id. at 2, 5. The court of appeals held that “[w]ithout more, we cannot say

that Deputy Kerr articulated facts, that when combined with rational inferences

from those facts, led him to reasonably conclude that Peters was intoxicated before

he detained her.” Id. at 5 (emphasis added). The court of appeals in Peters merely


                                          11
distinguished the cases relied on by DPS by noting that the officers in those cases

articulated more facts than in Peters.

      In order for the State to carry its burden of demonstrating the reasonableness

of the stop on the basis of a suspicion that appellant was intoxicated, the conduct

involved must be conduct that gave the officer ample reason to suspect that the

defendant was driving while intoxicated, or there must be additional evidence (e.g.,

testimony from the officer that, based on his experience, he subjectively suspected

appellant   of   being   intoxicated;    or    testimony   regarding   the   objective

circumstances—time, location, the vehicle’s movement, etc.) that would have led a

reasonable officer to suspect the driver of being intoxicated. See id. at 4-5; Ehrhart

v. State, 9 S.W.3d 929, 930 (Tex. App.—Beaumont 2000, no pet.); Hernandez v.

State, 983 S.W.2d at 870. In the present case, Officer Lima testified at the

suppression hearing that he had been a Polk County peace officer seven or eight

years and had experience conducting DWI stops. He explained that when he

decided to stop Crumpton, Lima suspected that Crumpton was possibly driving

while intoxicated “[b]ased on the coming in and out of the lane of travel, back into

the lane of travel, inattentive to the blinker on, things of that nature[,]” and Lima

“wanted to make sure [Crumpton] was okay to drive.” Lima testified that he

initially observed Crumpton swerve away from incoming traffic “[a]nd back into


                                          12
the lane” and then, while Lima followed Crumpton for approximately two miles,

Lima observed Crumpton’s failure to turn his turn signal off and observed

Crumpton partially cross “over the lane of traffic and c[ome] back into his lane on

more than one occasion.” Officer Lima testified that once he had initiated the

traffic stop and due to the “circumstances that led up to [the] traffic stop[,]” he

asked Crumpton whether he had anything to drink or if he had taken any

medication that day.

      Unlike in Peters, in this case the officer testified that one of the reasons for

the stop was that he believed Crumpton might be intoxicated. Based on the totality

of the circumstances, we conclude that Officer Lima articulated facts, which taken

together with rational inferences from those facts, that justified his reasonable

suspicion that Crumpton was driving while intoxicated. See Kennimer v. State, No.

05-12-01674-CR, 2013 Tex. App. LEXIS 10575, **1-2, 6-7 (Tex. App.—Dallas

Aug 21, 2013, no pet.) (mem. op., not designated for publication) (although

officer’s basis for the stop was the appellant’s failure to maintain a single lane, the

officer observed driving behavior—defendant’s quick acceleration at a traffic

signal, obscene gesture, and crossing into an adjacent lane—that could reasonably

lead the officer to believe appellant was driving while intoxicated); Walker v.

State, No. 2-04-336-CR, 2006 Tex. App. LEXIS 1328, at *13-14 (Tex. App.—Fort


                                          13
Worth Feb. 16, 2006, no pet.) (mem. op., not designated for publication) (where

officer testified he believed appellant might be intoxicated based on his initial

observation of appellant driving onto the highway shoulder and then crossing the

center yellow lines of the road and the officer’s suspicion remained when appellant

continued weaving while being followed, the officer articulated facts, which taken

together with rational inferences from those facts, that justified the officer’s

reasonable suspicion that appellant was driving while intoxicated); State v. Arend,

No. 2-03-336-CR, 2005 Tex. App. LEXIS 3289, at **11-14 (Tex. App.—Fort

Worth Apr. 28, 2005, pet. ref’d) (mem. op., not designated for publication)

(holding officer’s observation of the appellee’s vehicle weaving within the lane

and continued weaving as the officer followed for approximately forty-five to fifty

seconds, and the officer’s testimony that he believed from his initial observations

that appellee was driving while intoxicated, provided specific articulable facts to

justify officer’s reasonable suspicion that the appellee was driving while

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

2001, pet. ref’d) (concluding that even if the officer’s testimony that defendant was

driving at slow speed in left lane and crossed over center line did not establish a

reasonable suspicion that appellant had violated a traffic law, it did raise sufficient

facts to justify stop based on reasonable suspicion that defendant was intoxicated);


                                          14
State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.—Waco 1998, pet. ref’d) (noting

that “weaving” combined with another act—“i.e., going into another lane of

traffic, high rates of speed or erratic speed changes”—justify an investigative stop

and adding that “mere weaving in one’s own lane of traffic can justify an

investigatory stop when that weaving is erratic, unsafe, or tends to indicate

intoxication or other criminal activity”) (emphasis added); Gajewski v. State, 944

S.W.2d 450, 453 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (in light of the

officer’s experience, his observations of appellant’s weaving across both the solid

and broken lines dividing traffic was sufficient to provide reasonable suspicion to

initially stop appellant because, even though no traffic violation had occurred, the

driver’s conduct could cause the officer to reasonably believe the driver had lost

control of his mental and physical faculties by ingesting alcohol or drugs); Davis v.

State, 923 S.W.2d 781, 788 (Tex. App.—Beaumont 1996) (holding stop proper

where officer testified he suspected driver was intoxicated or tired based on

weaving within lane), rev’d on other grounds, 947 S.W.2d 240 (Tex. Crim. App.

1997). The record supports the trial court’s conclusion that Officer Lima had

reasonable suspicion to believe that Crumpton had violated the law.

      Finding that Lima was justified in initiating the stop, we need not address

Crumpton’s argument that Lima did not have reasonable suspicion to believe that


                                         15
Crumpton failed to maintain a single lane under section 545.060, that Lima did not

have probable cause to stop Crumpton for failure to turn off his blinker, or that the

evidence obtained in the search should have been suppressed because his consent

to search his vehicle is a fruit of the illegal stop. Issue one is overruled.

                                   ATTORNEY’S FEES

      In issue two, Crumpton argues that after being found indigent, his status did

not change before he was sentenced. He concludes the trial court erred in assessing

$600 in attorney’s fees in the judgment. A trial court may tax the defendant with

attorney’s fees if there is a material change in the defendant’s ability to pay

attorney’s fees between the date the trial court initially determined the defendant to

be indigent and appointed trial counsel and the date trial counsel renders its final

judgment. See Tex. Code Crim. Proc. Ann. arts. 26.04(p), 26.05(g) (West Supp.

2014); see also Roberts v. State, 327 S.W.3d 880, 884 (Tex. App.—Beaumont

2010, no pet.).

      In this case, the record shows that the trial court found Crumpton to be

indigent and appointed trial counsel before Crumpton was tried on the charge of

possession of a dangerous drug. Following his conviction for possession of a

dangerous drug, the trial court found Crumpton remained indigent and the trial

court appointed counsel to represent Crumpton in this appeal.


                                           16
      The trial court made no express findings regarding whether there had been a

change in Crumpton’s status as an indigent defendant. Nor is there any evidence in

the record that would support any implied finding that Crumpton’s financial

circumstances materially changed following the trial court’s initial determination

that he was indigent. Because no evidence supports any implied finding that there

was a material change in Crumpton’s ability to pay attorney’s fees, the trial court

erred in awarding the fees as costs. See Tex. Code Crim. Proc. Ann. art. 26.05(g);

Roberts, 327 S.W.3d at 884. We sustain issue two.

      We are authorized by the Texas Rules of Appellate Procedure to render the

judgment the trial court should have rendered. See Tex. R. App. P. 43.2, 43.3.

Therefore, we modify the judgment the trial court rendered by deleting the award

of $600 in attorney’s fees as costs of court. We affirm the trial court’s judgment as

modified.

      AFFIRMED AS MODIFIED.

                                                    _________________________
                                                       LEANNE JOHNSON
                                                              Justice
Submitted on October 15, 2014
Opinion Delivered December 10, 2014
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.



                                         17
