                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-06-361-CR


ROBERT DAVID BRACKEN                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

     FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

      A jury convicted Appellant Robert David Bracken of driving while

intoxicated (DWI) enhanced by a prior DWI conviction.          The trial court

sentenced Appellant to sixty days’ incarceration in the Tarrant County Jail and

assessed a fine of $1,000. In three points, Appellant contends that the trial

court erred by denying his motions to suppress, by denying his motion to limit
any direct or indirect references to any prior arrests or convictions for DWI, and

by allowing improper closing argument. We affirm.

                                  Background

      On September 3, 2004, Appellant was charged by information with

driving while intoxicated. The charging instrument contained an enhancement

paragraph relating to Appellant’s previous DWI conviction.

      On October 16, 2006, at a pretrial hearing, the trial court orally granted

Appellant’s motion to prevent reference to any prior convictions and his motion

to limit the prosecutor from referencing any prior DWI arrest or conviction. The

trial court also considered Appellant’s motions to suppress, which sought to

suppress any evidence seized by the officers in connection with the detention

and arrest and any officer testimony concerning such evidence. After hearing

testimony from the arresting officer, Tarrant County Sheriff’s Deputy Howard

Johnson, and Appellant and reviewing the in-car video of Appellant’s driving

made by Deputy Johnson during part of the time that he was following

Appellant, the trial court orally denied Appellant’s motion to suppress.

      The videotape also captured Appellant’s sobriety tests performed at the

police station. While the jury was deliberating, the jurors asked to see the

videotape of Appellant’s tests at the stop and at the station. By agreement, the

video was forwarded to the point of the test at the stop that would prevent the

jury from hearing the part of the tape referencing Appellant’s prior conviction

                                        2
for DWI. But the judge noted that the “entire exhibit’s in evidence” and “if they

want to see it, I’m going to let them see it.” The jury was given the tape to

watch in the jury room.

1.    Motion to Suppress

      In his first point, Appellant argues the trial court erred by denying his

motion to suppress because the State failed to show that Deputy Johnson had

a reasonable suspicion for the initial traffic stop. 1



…
      1
        The dissent contends that we are imposing a double standard for
defendants and the State by allowing this appeal when the trial court did not
reduce its denial of the motion to suppress to writing. The dissent urges that
we should follow our opinion in Cox v. State, 235 S.W.3d 283 (Tex.
App.—Fort Worth 2007, no pet.). In Cox, we held that the State could not
appeal from the grant of a motion to suppress evidenced by only a docket entry
because the trial court had not “entered” its ruling by reducing it to a signed
written order, which we held was required by article 44.01. Id. at 284;
see Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2008)
(providing State entitled to appeal from grant of motion to suppress); art.
44.01(d) (providing appeal may not be taken more than fifteen days after order
“entered” by court); Tex. R. App. P. 26.2(b) (providing State’s time to appeal
runs from date trial court “enters” order). Such an appeal is interlocutory and
strictly governed by statute and is entirely different from the appeal in this case.
We have never held that a written order denying a motion to suppress is a
prerequisite to a defendant’s appeal from a final judgment of conviction, and
nothing in the code of criminal procedure supports such a requirement. See
Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 2006); Tex. R. App. P.
25.2(a)(2); Montanez v. State, 195 S.W.3d 101, 105 (Tex. Crim. App. 2006)
(holding defendant appealing the denial of a motion to suppress was not
required to request a ruling or object to trial court’s refusal to rule when record
showed that trial court implicitly overruled motion to suppress); Flores v. State,
888 S.W.2d 193, 196 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)
(holding that signed docket entry evidences trial court’s ruling on motion to
suppress evidence even when denial of motion to suppress appears nowhere

                                         3
                               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, 195 S.W.3d at 108–09; 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 and demeanor of the witnesses, we review the trial



else in record).

                                         4
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 819.

                             Reasonable Suspicion

      The Fourth Amendment 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



                                        5
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.

      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).2   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.




      2
       … Because a routine traffic stop typically involves only a short,
investigative detention, as opposed to a custodial arrest, we analyze traffic
stops under the principles developed for investigative detentions set forth in
Terry v. Ohio, 392 U.S. at 22, 88 S. Ct. at 1880; see Berkemer v. McCarty,
468 U.S. 420, 104 S. Ct. 3138 (1984); Martinez v. State, 236 S.W.3d 361,
369 (Tex. App.—Fort Worth 2007, pet. dism’d, untimely filed).

                                       6
                                     Analysis

      At the suppression hearing, Deputy Johnson testified that he began to

follow Appellant’s vehicle after he saw approximately half of the vehicle cross

the yellow center lane divider at approximately 1:30 a.m. on FM 1187, a two-

lane rural road that was undergoing construction work. He said that as he

followed Appellant, Appellant weaved from one side of the lane to the other

repeatedly, crossing or driving on the white and yellow lines and lane bumps

several times. He testified that Appellant’s driving indicated to him “that [he]

possibly had an intoxicated driver on hand.” When asked on cross-examination

whether Appellant’s failure to maintain a single lane was dangerous, he

answered that it was dangerous to Appellant himself because he was weaving

in a construction zone with no shoulder and with concrete barriers and traffic

barrels on the side of the road. He agreed that under the circumstances present

at the time, i.e., a construction zone with no shoulder, it could be safer to drive

closer to the center line if no oncoming traffic was present. After reviewing the

in-car video he made during the pursuit, Deputy Johnson admitted that at one

point his own vehicle drove on the lane bumps but said that in so doing he did

not create a danger to anyone else.

      The trial court also reviewed the in-car video, as has this court. It shows

Appellant’s car drifting back and forth, repeatedly driving on or over the “Botts



                                        7
Dots,” or lane bumps, and paint-marker flags at either edge of the lane as it

travels through a construction zone on a two-lane country road in the dark.

      Appellant testified that he never crossed the center line. He said that his

tires touched the center-line lane bumps once or twice, but as soon as he felt

the bumps, he moved back into the center of the lane.

      Deputy Johnson identified three aspects of Appellant’s driving as giving

rise to a reasonable suspicion for the traffic stop: Appellant’s crossing over the

center line by half a vehicle’s width; crossing or driving on the fog line; and

weaving back and forth within his lane over the course of several miles, which

led him to suspect that Appellant was intoxicated. Transportation code section

545.051 provides that an operator on a roadway of sufficient width shall drive

on the right half of the roadway unless the operator is passing another vehicle,

an obstruction necessitates moving the vehicle to the left of the center of the

roadway, the operator is on a roadway divided into three marked lanes for

traffic, or the operator is on a roadway restricted to one-way traffic. Tex.

Transp. Code Ann. § 545.051(a) (Vernon 1999). Deputy Johnson testified that

when he first saw Appellant’s vehicle, Appellant crossed the center line of the

two-lane, two-way roadway by half a vehicle’s width; in other words, Appellant

failed to drive on the right, and none of section 545.051(a)’s exceptions to this

requirement apply. This observation alone was enough to create a reasonable



                                        8
suspicion that Appellant had violated the law. See Rubeck v. State, 61 S.W.3d

741, 745 (Tex. App.—Fort Worth 2001, no pet.) (op. on reh’g) (holding

officer’s observation of defendant’s vehicle crossing center line one time

provided reasonable suspicion for traffic stop).

      Appellant cites Ehrhart v. State, 9 S.W.3d 929 (Tex. App.—Beaumont

2000, no pet.), for the proposition that a vehicle’s touching the fog line two or

three times does not justify a stop. In that case, one officer testified that the

defendant’s vehicle crossed the left white line (not the yellow center stripe)

once and the right white line twice. Id. at 930. Another officer testified that

the defendant’s vehicle only touched the right white line twice. Id. There was

no evidence that the defendant’s failure to maintain a single lane of travel was

unsafe. Id. Ehrhart is distinguishable from this case because it involved a

different section of the transportation code, section 545.060(a), which provides

that a driver must drive as nearly as practical within a single lane and may not

move from the lane unless that movement can be made safely. Tex. Transp.

Code Ann. § 545.060(a) (Vernon 1999).3 We need not decide whether the


      3
       … We recently analyzed section 545.060(a) and the circumstances under
which it gives rise to a reasonable suspicion of a traffic violation in Fowler v.
State, 266 S.W.3d 498 (Tex. App.—Fort Worth 2008) (en banc) (holding
testimony that defendant’s vehicle crossed into an adjacent same-direction lane
one time by a tire’s width and touched the white line two more times when it
was not unsafe to do so did not show a reasonable suspicion for a traffic stop),
pet. stricken, 2008 WL 5245352 (Tex. Crim. App. 2008).

                                       9
suppression hearing evidence in this case supports a reasonable suspicion that

Appellant violated section 545.060(a) because we have already determined that

the evidence justified a stop based on Appellant’s violation of section

545.051(a), which does not contain an “unless the movement can be made

safely” exception to the prohibition against crossing the center line. See id.

§ 545.051(a). Thus, whether Appellant could safely cross the center line is

irrelevant to our reasonable suspicion analysis.

      For these reasons, we hold that the trial court did not err by denying

Appellant’s motion to suppress, and we overrule his first point.

2.    Evidence of Prior DWI Conviction

      In his second point, Appellant complains that the trial court erred by

allowing the evidence concerning which it had granted a pretrial motion in

limine (evidence of Appellant’s prior arrests and conviction for DWI) to be

submitted to the jury during deliberations. During its case-in-chief, the State

offered the videotape that contained statements relating to Appellant’s prior

arrests and conviction for driving while intoxicated. Appellant affirmatively

stated that he had no objection to admission of the videotape, which was then

admitted in its entirety and without limitation.   See Delgado v. State, 235

S.W.3d 244, 251 (Tex. Crim. App. 2007). The ruling on the motion in limine

did not preserve any complaint. See Wilkerson v. State, 881 S.W.2d 321, 326



                                      10
(Tex. Crim. App.), cert. denied, 513 U.S. 1060 (1994); Gonzales v. State, 685

S.W .2d 47, 50 (Tex. Crim. App.), cert. denied, 472 U.S. 1009 (1985).

Additionally, the conscientious trial judge did all he could to limit the jury’s

viewing of the tape during deliberations to that portion which the jury had

requested, the sobriety tests. We overrule Appellant’s second point.

3.    Improper Argument

      In his third point, Appellant argues that the State was allowed to mislead

the jury in closing argument. The prosecutor stated, “Now if ya’ll can figure

that out, you’re smarter than me. That means that his last drink was at the

time that he got there, apparently. If you’re only there for an hour, your last

drink can’t be an hour before you leave the bar. Does this make sense?”

      Appellant argues that “[t]his false information was extremely damaging

to [him] in several ways.” Appellant, however, did not object to the argument

below, nor does he provide legal authority to support his position on appeal.

He has therefore failed to preserve his complaint. See Tex. R. App. P. 33.1(a),

38.1(h); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004); Tong

v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S.

1053 (2001); Mosley v. State, 983 S.W.2d 249, 256, 265 (Tex. Crim. App.

1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). We overrule his

third point.



                                      11
                               Conclusion

     Having overruled Appellant’s three points, we affirm the trial court’s

judgment.




                                             ANNE GARDNER
                                             JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: January 15, 2009




                                   12
                       COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH


                             NO. 2-06-361-CR


ROBERT DAVID BRACKEN                                              APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE

                                  ------------

     FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY

                                  ------------

                         DISSENTING OPINION

                                  ------------

     This case raises three significant issues, one of which the majority

addresses, albeit only in a footnote, and two of which the majority fails to

address:

     1. Is this court correct to create a double standard for reviewing rulings

on motions to suppress, depending on whether the trial court rules for or

against the State?

     2. Alternatively, if we reach the merits of the suppression issue, what

weight do we give the trial court’s implicit findings of fact when they are
supported by a witness’s testimony but contradicted by a videotape of those

events?

      3. Further, when a law enforcement officer testifies that his reasonable

suspicion to detain the defendant was established by a combination of three

events, and the videotape shows that one or more of those events did not

occur, has the State proved reasonable suspicion to justify the warrantless

detention?

      Because the majority establishes a double standard for reviewing rulings

on motions to suppress, and, alternatively, in reaching the merits of the

suppression issue does not address the last two questions posed above, I

respectfully dissent.

I. Oral Ruling on Motion to Suppress

      The trial court orally denied Appellant’s motions to suppress but did not

enter a written order. In his first point, Appellant argues that the trial court

erred by denying his motions to suppress. This court has held that there is no

appealable ruling on a motion to suppress unless the trial judge enters a written

order.4 As noted in Cox, “[W]e notified the State of our concern that we lacked




      4
      … State v. Cox, 235 S.W.3d 283, 283, 285 (Tex. App.—Fort Worth
2007, no pet.) (en banc).

                                       2
jurisdiction over the appeal because there is no appealable written order.” 5 We

concluded in the opinion that we indeed lacked jurisdiction based on the

absence of a written order.6

      Following the Rosenbaum court,7 we interpreted “entered by the court”

to mean the signing of a written order.8 We recognized that Rosenbaum dealt

with former appellate rule 41(b)(1), which required an appealable order signed

by the trial court, and which has been superseded by appellate rule 26.2(b),

which does not.9          And we did not address the fact that although article

44.01(d) of the code of criminal procedure and appellate rule 26.2(b) speak of

a sentence to be appealed,10 the appellate timetable runs not from the signing

of the written judgment and sentence but from the pronouncement of sentence

in open court. 11


      5
          … Id. at 284.
      6
          … Id. at 285.
      7
          … State v. Rosenbaum, 818 S.W.2d 398 (Tex. Crim. App. 1991).
      8
          … Cox, 235 S.W.3d at 284.
      9
          … Id. at 284 & n.9.
      10
       … Tex. Code Crim. Proc. Ann. art. 44.01(d) (Vernon Supp. 2008); Tex.
R. App. P. 26.2(b).
      11
        … Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Vernon Supp. 2008);
Tex. R. App. P. 26.2; Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App.
2004).

                                          3
      By holding in Cox that the trial court does not enter an order granting a

motion to suppress until formally signing a written order, even though the ruling

and findings of fact and conclusions of law have been pronounced on the

record in open court, we allowed the State more than six extra months to

perfect its appeal. Yet, in the case now before this court, the majority holds

that the trial court enters an order denying a motion to suppress when the trial

court pronounces its ruling orally.12 The majority states that the appeal lies

because after a trial is concluded, the appellant is appealing from “a final

judgment of conviction.” 13     But the majority confuses the criminal rules of

procedure with the civil rules of procedure. While the appellate timetable in a

civil case runs from the signing of the judgment, the appellate timetable in a

criminal case begins to run when the sentence is pronounced orally in open

court.14 The judgment may be signed days or even weeks later in a criminal

case and has no effect on the appellate timetable.

      To remain consistent with the rule of Cox, we should hold that because

there is no written order denying Appellant’s motions to suppress, there is

nothing to appeal from the suppression ruling, and we should dismiss the


      12
           … See majority op. at 3 n.1.
      13
           … Id.
      14
           … See Tex. R. App. P. 26.1, 26.2.

                                          4
issue.15 The majority, however, holds that when a defendant appeals from a

ruling on the motion to suppress, no written order is necessary.

II. The Officer’s Testimony vs. The Exhibits

      Further, in reaching the merits of the suppression issue, the majority does

not address the significance of the conflicts between the officer’s testimony

and the objective evidence. In the trial court, Tarrant County Sheriff’s Deputy

Howard Johnson testified that while on patrol around 1:30 a.m. on September

1, 2004, he observed a green Lincoln driving eastbound on FM 1187.

Appellant was the driver of the vehicle. Johnson testified that he saw the

vehicle fail to maintain a single lane; specifically, he said that he saw about a

fourth to half of the vehicle cross over the yellow center lane divider and into

the westbound lane. Although he later turned on his video camera, he did not

record the driving he described at this point.

      Johnson testified that he then began to follow the vehicle. He said he

saw the car drive over the center line at least once more and that he noticed

the vehicle weaving “rythmatically” within the traffic lane. At some point while

following the vehicle, Johnson turned on his in-car camera. He denied that

Appellant was speeding and testified that he would have stopped Appellant had




      15
           … See Cox, 235 S.W.3d at 285.

                                       5
Appellant been speeding. Johnson did testify, however, that Appellant “fail[ed]

to maintain a single lane several additional times.”

      The pertinent portion of the transportation code provides, “An operator

on a roadway of sufficient width shall drive on the right half of the

roadway. . . .” 16 The videotape, still photographs, and testimony reveal that

the roadway in the stretch in question is a narrow, winding road with no

shoulder and with concrete barriers and barrels along the far edge of the

roadway. A sign warns of the narrow road, and Johnson admitted that it could

be safer to “get a little bit further away from a no-shoulder if there’s no other

traffic coming.” As the majority concedes, Johnson himself was unable to

confine his vehicle to the right-hand lane, although he testified that there was

“adequate room on the roadway.”        Appellant testified at the suppression

hearing that he never crossed the center line.

      Johnson testified that he stopped Appellant’s vehicle because of two

instances of driving over the center line and ”rhythmatic weaving” that, to him,

was indicative of intoxication. The videotape does not support the officer’s

description of Appellant’s driving.    Indeed, Appellant’s driving reveals no

evidence of impairment and nothing that would provide reasonable suspicion of




      16
           … Tex. Transp. Code Ann. § 545.051 (Vernon 1999).

                                       6
impairment that would justify a detention.

      The majority substitutes its determination of reasonable suspicion for

Johnson’s, although the majority relies on his testimony that he saw

Appellant’s vehicle cross the center line. Johnson testified that he stopped

Appellant because he had reasonable suspicion that Appellant was intoxicated

and constituted a danger to himself, based on seeing him cross the center line

twice and weave within his lane. The majority disagrees and says that Johnson

stopped Appellant because he had reasonable suspicion that Appellant had

violated section 545.051.

      Although the standard for determining reasonable suspicion is an

objective one, in that there need only be an objective basis for the stop, and the

subjective intent of the officer conducting the stop is irrelevant,17 when the

officer states objective bases for the stop that are disproved by the physical

evidence, here, the videotape, how much deference do we give the trial court’s

implicit findings of fact? When the still photograph of the roadway shows a

lane so narrow that the vehicle depicted is riding the center stripe, how much

deference do we give the trial court’s implicit finding based on Johnson’s

testimony that the lane was not especially narrow? Again, it is a violation of




      17
           … Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).

                                        7
section 545.051 to cross the center stripe only when the roadway is “of

sufficient width.” 18 The majority does not discuss these important questions.

      Johnson testified that reasonable suspicion to detain Appellant was

provided by the combination of Appellant’s crossing the center line twice, once

on videotape and once unrecorded, and weaving “rhythmatically” within his

lane. The videotape disproves Johnson’s testimony. How much weight do we

give the trial court’s implicit finding that Johnson made these observations

when the videotape contradicts his testimony? The majority does not discuss

this important issue.

III. Conclusion

      Because the majority establishes a double standard for rulings on motions

to suppress, and, alternatively, does not address the deference we should

afford a trial court’s implicit findings when objective, physical evidence conflicts

with an officer’s testimony on which the findings are based, I respectfully

dissent.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PUBLISH

DELIVERED: January 15, 2009


      18
           … Tex. Transp. Code Ann. § 545.051.

                                         8
