                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-16-00128-CR

DANIEL LEE FLORES,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                            From the 19th District Court
                             McLennan County, Texas
                            Trial Court No. 2015-531-C1


                           MEMORANDUM OPINION


       Daniel Flores appeals from a conviction for the offense of possession of a

controlled substance in an amount over one gram but less than four grams. TEX. HEALTH

& SAFETY CODE ANN. § 418.115 (West 2010). In his sole issue, Flores complains that the

trial court abused its discretion by refusing to include an instruction pursuant to article

38.23 of the Code of Criminal Procedure because there was a contested fact issue relating
to the legal basis for the traffic stop that led to the discovery of the controlled substance.

Because we find that the trial court did not err, we affirm the judgment of the trial court.

Facts

        The arresting officer, a street crimes officer, drove up to a convenience store that

was known for drug trafficking at approximately 9:30 p.m. on the night of Flores's arrest.

The officer and his partner parked their vehicle and began using their binoculars to watch

for illegal transactions. The officer spotted a vehicle that was parked on the south side of

the convenience store where there was no lighting and where it was known that drug

deals were completed. The driver got out of his vehicle, walked to the south side of the

building, and returned to his car where he then sat for approximately ten minutes before

driving away.      The officer testified that this was behavior consistent with drug

transactions.

        The officer decided to follow the vehicle because he did not believe that he had

probable cause to stop the vehicle at that time. The vehicle, driven by Flores, was

traveling in the center lane of a three-lane, one-way street when he swerved over the

white lines partially into the right lane and then partially into the left lane. The officer

then initiated a traffic stop of Flores's vehicle because he believed that Flores had

committed a traffic offense pursuant to Section 545.060 of the Transportation Code or

could be under the influence of alcohol.        There was also testimony regarding the

possibility that Flores had violated a city ordinance against loitering at the convenience


Flores v. State                                                                         Page 2
store. The controlled substance at issue in this proceeding was found on Flores's person

during a search incident to arrest because he presented an expired and suspended

driver's license to the officer and had two outstanding warrants.

        Flores did not file a motion to suppress evidence prior to the trial. However,

during the trial, Flores testified that when he swerved into the other lanes he believed

that there was no traffic nearby and that the diversions into the other lanes were not made

unsafely. Flores requested that an instruction be included in the jury charge pursuant to

article 38.23 of the Code of Criminal Procedure because he contended that he had raised

a contested fact issue regarding whether or not the lane change was made safely pursuant

to Section 545.060 of the Transportation Code. The trial court refused to include the

instruction in the jury charge. It is this refusal of which Flores complains in his sole issue

in this appeal.

Article 38.23

        Article 38.23 of the Code of Criminal Procedure provides that no evidence

obtained by an officer in violation of the laws of Texas or the United States shall be

admitted in evidence against an accused on the trial of any criminal case. TEX. CODE CRIM.

PROC. ANN. art. 38.23 (West 2005). Further, that article states that where the legal

evidence raises this issue, the jury shall be instructed that if it believes, or has a reasonable

doubt, that the evidence was obtained in violation of the law, it shall disregard the

evidence obtained. Id.


Flores v. State                                                                           Page 3
        There are three requirements that must be met in order to be entitled to an

instruction pursuant to article 38.23: (1) the evidence heard by the jury must raise an

issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that

contested factual issue must be material to the lawfulness of the challenged conduct in

obtaining the evidence. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). "[I]f

other facts, not in dispute, are sufficient to support the lawfulness of the challenged

conduct, then the disputed fact issue is not submitted to the jury because it is not material

to the ultimate admissibility of the evidence." Id.

Reasonable Suspicion

        Flores argues that the potential violation of Section 545.060 of the Transportation

Code was the only possible lawful reason for the traffic stop because the officer did not

testify that he believed that Flores was intoxicated, merely that he might be under the

influence of alcohol. Additionally, Flores contends that it was legally impossible for the

officer to have reasonable suspicion to believe that he had violated a city ordinance

against loitering.

        Section 545.060 of the Transportation Code states that on a road divided into two

or more clearly marked lanes, a driver "(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

done safely." TEX. TRANSP. CODE ANN. § 545.060 (West 2011). On the day this proceeding

was submitted to the jury, a plurality of the Court of Criminal Appeals issued an opinion


Flores v. State                                                                        Page 4
that stated that there are two separate ways a violation of Section 545.060 can occur, by

failing to drive as nearly as practical in a single lane or by moving from the lane when it

is unsafe to do so. See Leming v. State, 493 S.W.3d 552, 559-60 (Tex. Crim. App. 2016). It

would then follow that there was a lawful basis for the stop that did not include a

contested fact issue, because there was no dispute that Flores did not drive in a single

lane as nearly as practical. However, it is not necessary for us to determine whether to

follow the plurality in Leming because the officer clearly had sufficient reasonable

suspicion to initiate the traffic stop for driving while intoxicated.

        A warrantless detention of the person that amounts to less than a full-blown

custodial arrest must be justified by reasonable suspicion under the Fourth Amendment.

In Derichsweiler v. State, the standard for reasonable suspicion was set forth as follows:

        A police officer has reasonable suspicion to detain if he has specific,
        articulable facts that, combined with rational inferences from those facts,
        would lead him reasonably to conclude that the person detained is, has
        been, or soon will be engaged in criminal activity. This standard is an
        objective one that disregards the actual subjective intent of the arresting
        officer and looks, instead, to whether there was an objectively justifiable
        basis for the detention. It also looks to the totality of the circumstances;
        those circumstances may all seem innocent enough in isolation, but if they
        combine to reasonably suggest the imminence of criminal conduct, an
        investigative detention is justified.

Derichsweiler v. State, 348 S.W.3d 906, 914-15 (Tex. Crim. App. 2011) (footnotes, citations,

and internal quotation marks omitted).

        In Leming, after its discussion regarding Section 545.060, the Court of Criminal

Appeals further considered whether an officer had reasonable suspicion to stop an
Flores v. State                                                                        Page 5
individual based on driving while intoxicated when weaving outside of a lane, similar to

what occurred in this case. A majority of the Court of Criminal Appeals stated in that

opinion that:

        The question here is whether Gilow had an objectively reasonable basis to
        suspect the driver of the Jeep to be intoxicated. "A person commits an
        offense if the person is intoxicated while operating a motor vehicle in a
        public place." TEX. PENAL CODE ANN. § 49.04(a). "Intoxicated means . . . not
        having the normal use of mental or physical faculties by reason of the
        introduction of alcohol, a controlled substance, a drug, a dangerous drug, a
        combination of two or more of those substances, or any other substance into
        the body[.]" TEX. PENAL CODE ANN. § 49.01(2)(A). The United States
        Supreme Court has recently acknowledged that observation of "dangerous
        behaviors" such as weaving back and forth across the roadway and crossing
        the center line "would justify a traffic stop on suspicion of drunk driving."
        Navarette v. California, 134 S.Ct. 1683, 1690-91, 188 L. Ed. 2d 680 (2014).
        Moreover, while it is true that such behavior "might also be explained by,
        for example, a driver responding to an unruly child or other distraction[,]"
        the Supreme Court has "consistently recognized that reasonable suspicion
        need not rule out the possibility of innocent conduct." Id. at 1691 (internal
        citations and quotation marks omitted). This Court has said the same. See
        Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997) ("[T]he 'as consistent
        with innocent activity as with criminal activity' construct is no longer a
        viable test for determining reasonable suspicion."). "It is, after all, only an
        'investigative' detention. So long as the intrusion does not exceed the
        legitimate scope of such a detention and evolve into the greater
        intrusiveness inherent in an arrest-sans-probable-cause, the Fourth
        Amendment will tolerate a certain degree of police proaction."
        Derichsweiler, 348 S.W.3d at 916.

Leming, 493 S.W.3d at 563. The weaving outside of Flores's lane constituted a sufficient

basis for the officer to have reasonable suspicion of driving while intoxicated. Because

there was no dispute as to the fact that Flores did weave outside of his lane of traffic more

than once, there were facts, not in dispute, to support the lawfulness of the challenged


Flores v. State                                                                           Page 6
conduct, and it was not erroneous for the trial court to refuse to include the requested

instruction. See Madden, 242 S.W.3d at 510. We overrule Flores's sole issue.

Conclusion

         Having found that the trial court did not err, we affirm the judgment of the trial

court.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 8, 2017
Do not publish
[CR25]




Flores v. State                                                                      Page 7
