                                                                               ACCEPTED
                                                                          03-14-00033-CR
                                                                                 4315628
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                     2/27/2015 2:03:24 PM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK
                    No. 03-14-00033-CR
__________________________________________________________
                                                     FILED IN
                                              3rd COURT OF APPEALS
       IN THE COURT OF APPEALS FOR THE THIRD      AUSTIN, TEXAS
                   DISTRICT OF TEXAS          2/27/2015 2:03:24 PM
__________________________________________________________
                                                JEFFREY D. KYLE
                                                      Clerk
               MICHAEL MARRERO, Appellant

                             v.

               THE STATE OF TEXAS, Appellee
__________________________________________________________

       On Appeal from the County Court at Law Number Two
                   Cause Number 2013CR0098
                      Comal County, Texas
__________________________________________________________

                  BRIEF FOR THE STATE
__________________________________________________________

                                                     Jennifer Tharp
                                           Criminal District Attorney

                                                                    By
                                                 Abigail L. Whitaker
                                                       SBN 24051915
                                  Assistant Criminal District Attorney
                                  150 North Seguin Avenue, Suite 307
                                          New Braunfels, Texas 78130
                                                       (830) 221-1300
                                                   Fax (830) 608-2008
                                       E-mail: whitaa@co.comal.tx.us
                                                Attorney for the State


                 Oral Argument Is Requested
                       Identity of Parties and Counsel

Attorneys for the Appellant, Michael Marrero
The Law Offices of Jamie Balagia
Jessica E. Bernstein (AT TRIAL)
Hallye C. Braud & Sean Simpson (ON APPEAL)
313 South Main
San Antonio, Texas 78204
Telephone: (210) 394-3833
Facsimile: (210) 271-3833
Email: hallye@dwidude.com


Attorneys for the Appellee, The State of Texas
Comal County Criminal District Attorney’s Office
Abigail L. Whitaker & Ryan V. Vickers (AT TRIAL)
Abigail L. Whitaker (ON APPEAL)
150 North Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: whitaa@co.comal.tx.us




                                     ii
                                                  Table of Contents

Identity of Parties and Counsel ................................................................................ ii

Table of Contents ..................................................................................................... iii

Index of Authorities ................................................................................................. iv

Issues Presented ......................................................................................................... 1

Statement of Facts ......................................................................................................1

Summary of the Argument.........................................................................................3

Argument....................................................................................................................4

         I. Standard of Review ....................................................................................4

         II. Reasonable Suspicion for Traffic Violation ...........................................5

         III. Reasonable Suspicion for DWI ..............................................................8

Prayer .......................................................................................................................15

Certificate of Service ...............................................................................................16

Certificate of Compliance ........................................................................................17




                                                              iii
                                               Index of Authorities
                                                        Statutes

Tex. Transp. Code Ann. § 545.051 (West, Westlaw
through 2013 Sess.) ............................................................................................5, 6, 7

Tex. Transp. Code Ann. § 545.060 (West, Westlaw
through 2013 Sess.) ............................................................................................5, 6, 7
                                                  Cases

Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007)................................8, 9, 13

Dowler v. State, 44 S.W.3d 666 (Tex. App.—Austin
2001, pet. ref’d) ..............................................................................................5, 10, 11

Doyle v. State, 265 S.W.3d 28 (Tex. App.—Houston
[1st Dist.] 2008, pet. ref’d)...................................................................................... 5, 6

Foster v. State, 326 S.W.3d 609 (Tex. Crim. App. 2010) ......................................... 5

Fox v. State, 900 S.W.2d 345 (Tex. App.—Fort Worth
1995), pet. dism’d, improvidently granted, 930 S.W.2d
607 (Tex. Crim. App. 1996)...........................................................4, 9, 11, 12, 13, 14

Griffin v. State, 54 S.W.3d 820 (Tex. App.—Texarkana
2001, pet. ref’d) ...................................................................................................... 5, 6

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ........................................ 4

Hernandez v. State, 983 S.W.2d 867 (Tex. App.—Austin
1998, pet. ref’d) .................................................................................................... 9, 10

Johnson v. State, 722 S.W.2d 417 (Tex. Crim. App. 1986)
overruled on other grounds by McKenna v. State, 780
S.W.2d 797 (Tex. Crim. App. 1989) ..................................................................... 6, 9

Johnson v. State, 365 S.W.3d 484 (Tex. App.—Tyler
2012, no pet.) ............................................................................................................. 6


                                                             iv
Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App.
2000), abrogated on other grounds by Laster v. State, 275
S.W.3d 512 (Tex. Crim. App. 2009) ..................................................................... 6, 7

Ornelas v. United States, 517 U.S. 690 (1996)..................................................12, 14

State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) .............................................. 4

Tanner v. State, 228 S.W.3d 852 (Tex. App.—Austin
2007, no pet.) .......................................................................................8, 9, 12, 13, 14

Tex. Dep’t of Pub. Safety v. Chang, 994 S.W.2d 875
(Tex. App.—Austin 1999, no pet.) ........................................................................ 6, 7

United States v. Arvizu, 534 U.S. 266 (2002) ..................................................8, 9, 12

United States v. Sokolow, 490 U.S. 1 (1989) ............................................................. 9

Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997) ........................................... 8




                                                          v
                                   Issues Presented

   1. Did reasonable suspicion exist to conduct a traffic stop on Appellant for
      failing to maintain his vehicle on the right-hand side of the roadway in
      accordance with Texas Transportation Code Section 545.051?

   2. Did reasonable suspicion exist to conduct a traffic stop on Appellant for
      driving while intoxicated in violation of Texas Penal Code Section 49.04?



                                  Statement of Facts

      Late at night on May 28, 2012, Appellant Michael Marrero was driving

south on FM 306, a two-lane road with a double-yellow line marking the center

divide (1 R.R. at 8-9, 16-17). Comal County Sheriff’s Deputies Eric Lehr and

Gabriel Sepeda were traveling north on the same road (id.; 1 R.R. at 8-9). Deputy

Sepeda was driving and Corporal Lehr was riding in the passenger seat as a Field

Training Officer (1 R.R. at 8). One other vehicle was also traveling north a few car

lengths in front of the deputies’ vehicle (1 R.R. at 10).

      Both Deputy Sepeda and Corporal Lehr observed the vehicle in front of

them swerve onto the shoulder of the roadway as Appellant’s southbound vehicle

passed it (1 R.R. at 10, 27). They also observed Appellant’s vehicle nearly crossing

the center dividing line as it passed the vehicle in front of them (id.). As Appellant

approached and passed their vehicle, Deputy Sepeda likewise had to swerve to the

right to avoid a collision (1 R.R. at 9-10, 28). Deputy Sepeda saw the tire of


                                           1
Appellant’s vehicle cross over the center yellow line as the two cars passed each

other (1 R.R. at 9-10, 15, 18). This was not captured on video because the camera

is mounted forward-facing on the dashboard of the patrol car and did not have a

view of Appellant’s vehicle as it passed the deputies’ vehicle (1 R.R. at 15, 18).

Neither deputy saw any obstruction in the roadway (1 R.R. at 10, 27).

      Deputy Sepeda performed a U-turn, caught up to Appellant’s vehicle and

followed him to observe his driving (1 R.R. at 14, 19). Both Deputy Sepeda and

Corporal Lehr testified that they wanted to be sure something was wrong before

pulling Appellant over (1 R.R. at 20, 29). While following Appellant, both deputies

observed him weave within his lane and have inconsistent speed (1 R.R. at 15, 21,

28). Specifically, Deputy Sepeda testified that Appellant was driving about ten

miles per hour under the speed limit with fluctuating speed, drifting back and forth

within his lane, and riding on the center line (1 R.R. at 15, 21-22). Corporal Lehr

likewise testified that Appellant was unsteady in his lane, going towards both the

left and right sides several times, and that – unlike most vehicles – he did not

maintain a constant speed (1 R.R. at 28). Shortly after midnight, Appellant was

pulled over for failing to maintain a single lane and suspicion of driving while

intoxicated (1 R.R. at 8-9, 22, 29).




                                         2
                              Summary of the Argument

      There is support in the record for the trial court’s determination that Lehr

and Sepeda had reasonable suspicion for the traffic stop of Appellant’s vehicle.

The totality of the circumstances and reasonable inferences drawn from those

circumstances provided ample grounds to meet the relatively low burden of

objective, reasonable suspicion. Not only did Appellant commit a traffic offense in

view of the deputies by crossing the center dividing line of the roadway, but his

driving behavior was such that the deputies developed reasonable suspicion that

Appellant was driving while intoxicated.

      The Appellant’s piecemeal approach to the facts of the case is erroneous;

Texas precedents dictate that considering the totality of the circumstances is the

proper approach when evaluating whether or not reasonable suspicion exists and

further hold that acts which are not inherently criminal can still create reasonable

suspicion that criminal activity is afoot.

      The trial court’s ruling recognized that the State more than met its burden at

the hearing on Appellant’s Motion to Suppress. Further, the trial court’s findings

parallel the evidence preserved in the record and fall exactly in line with the body

of law regarding reasonable suspicion. Because the record and the law support the

denial of the motion to suppress, the Court should uphold the trial court’s ruling.




                                             3
                                     Argument

                                       I.
                               Standard of Review

      Courts will uphold a trial court’s denial of a motion to suppress absent a

clear abuse of discretion. Fox v. State, 900 S.W.2d 345, 346-47 (Tex. App.—Fort

Worth 1995), pet. dism’d, improvidently granted, 930 S.W.2d 607 (Tex. Crim.

App. 1996). When reviewing a trial court’s ruling on reasonable suspicion in a

motion to suppress, appellate courts apply the standard set out in Guzman v. State,

955 S.W.2d 85 (Tex. Crim. App. 1997). As noted in State v. Ross:

      [1] the appellate courts… should afford almost total deference to a
      trial court’s determination of the historical facts that the record
      supports especially when the trial court’s fact findings are based on
      an evaluation of credibility and demeanor. [2] The appellate court
      should afford the same amount of deference to trial courts’ rulings on
      “application of law to fact questions,” also known as “mixed
      questions of law and fact,” if the resolution of those ultimate questions
      turns on an evaluation of credibility and demeanor. [3] The appellate
      courts may review de novo “mixed questions of law and fact” not
      falling within this category.

32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (emphasis added). Further, even upon

a de novo review, the trial court’s ruling must be sustained if it is reasonably

supported by the record and is correct on any theory of law applicable to the case.

Id. at 855-56.




                                         4
                                        II.
  Officers had reasonable suspicion to conduct a traffic stop of Appellant for
    failing to maintain his vehicle on the right-hand side of the roadway in
               violation of Texas Transportation Code § 545.051.

      In order to lawfully conduct a traffic stop, a peace officer must have

reasonable suspicion, given the totality of the circumstances, that the driver is

engaged in criminal activity. Dowler v. State, 44 S.W.3d 666, 669 (Tex. App.—

Austin 2001, pet. ref’d). Reasonable suspicion is “specific articulable facts which,

taken together with rational inferences from those facts, lead [to a conclusion] that

the person detained is, has been, or soon will be engaged in criminal activity.” Id.

It is more than a hunch, but only requires a minimal level of objective justification.

Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010). Further, an officer

may stop a driver if he has reasonable suspicion that a traffic violation… has been

committed.” Doyle v. State, 265 S.W.3d 28, 31 (Tex. App.—Houston [1st Dist.]

2008, pet. ref’d).

      Appellant erroneously contends that he did not commit a traffic violation

because he did not violate Section 545.060. Appellant’s Brief at 10; Tex. Transp.

Code Ann. § 545.060 (West, Westlaw through 2013 Sess.). However, it is clear

from the testimony of the deputies and the findings of the trial court that Appellant

did commit a traffic offense by violating Section 545.051 (1 R.R. passim). Tex.

Transp. Code Ann. § 545.051 (West, Westlaw through 2013 Sess.). Pursuant to

Section 545.051, “[t]raveling across the yellow line into oncoming traffic is a

                                          5
traffic violation in itself and does not require the additional element of an unsafe

maneuver by the driver as does… § 545.060.” Griffin v. State, 54 S.W.3d 820, 823

(Tex. App.—Texarkana 2001, pet. ref’d). 1 The Texas courts have consistently held

that crossing over a center yellow line is a distinct and separate traffic offense from

weaving across white lines. See Tex. Dep’t of Pub. Safety v. Chang, 994 S.W.2d

875, 877 (Tex. App.—Austin 1999, no pet.); Doyle, 265 S.W.3d at 32; Griffin, 54

S.W.3d at 823; Johnson v. State, 365 S.W.3d 484, 489 (Tex. App.—Tyler 2012, no

pet.).

          In this case, Deputy Sepeda’s undisputed testimony is that he observed

Appellant’s tires cross over the yellow line, and the trial court found that his

testimony was credible (1 R.R. at 9-10, 15, 18; Suppl. C.R. at 4). Corporal Lehr did

testify that he did not see Appellant’s vehicle come completely over the line, but he

also said that he saw Appellant’s vehicle coming toward their lane and that they

had to make an evasive maneuver to avoid a collision (1 R.R. at 27-28). Corporal

Lehr was in the passenger seat, and as such, was not as close and did not have

Deputy Sepeda’s view of Appellant’s vehicle (see 1 R.R. at 8, 28). Notably, even if

the testimony of Deputies Sepeda and Lehr had been completely contradictory, as


1
    Section 545.051 states:
       (a) An operator on a roadway of sufficient width shall drive on the right half of the roadway,
           unless:
           (1) the operator is passing another vehicle;
           (2) an obstruction necessitates moving the vehicle left of the center of the roadway….

                                                   6
the finder of fact, the trial court was entitled to accept some testimony and reject

other testimony, in whole or in part. See Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000), abrogated on other grounds by Laster v. State, 275

S.W.3d 512 (Tex. Crim. App. 2009). Further, both deputies observed the vehicle in

front of them swerve away from Appellant’s vehicle as it passed, and neither

deputy observed any sort of obstruction in the roadway (1 R.R. at 10, 27).

      Appellant mistakenly assumes that the language “failure to maintain a single

lane” can only apply to Section 545.060, titled “Driving on Roadway Laned For

Traffic”. However, that language equally applies to Section 545.051, titled

“Driving on Right Side of Roadway.” While neither title includes the language

used by the deputies and the trial court, it is obvious from the record and the trial

court’s findings that both parties were contemplating the lane violation contained

in Section 545.051. Any further discussion of Section 545.060 is misleading and an

affront to judicial economy.

      The deputies developed reasonable suspicion that Appellant had committed

a traffic violation when they observed the car in front of them swerve to avoid

Appellant’s oncoming vehicle, when the deputies also had to swerve to avoid a

collision, and when Deputy Sepeda observed Appellant’s tire cross the yellow line

in violation of Section 545.051. See Chang, 994 S.W.2d at 877, 877 n.4 (noting

that appellant’s driving over the yellow line was sufficient to support a stop for a


                                         7
traffic violation, and made any discussion of reasonable suspicion to stop for DWI

unnecessary). Therefore, giving almost total deference to the trial court’s

determination of the facts and the credibility of witnesses, the record clearly

supports the trial court’s conclusion that Deputies Sepeda and Lehr had reasonable

suspicion to stop Appellant for a traffic violation.

                                       III.
  Officers had reasonable suspicion to conduct a traffic stop of Appellant for
   driving while intoxicated in violation of Texas Penal Code Section 49.04.

      Reasonable suspicion that a motorist is driving while intoxicated is

determined by a totality of the circumstances analysis specific to each case, and

individual factors are not to be considered piecemeal; courts should not isolate

individual facts and decide whether each one independently gives rise to

reasonable suspicion. Tanner v. State, 228 S.W.3d 852, 857-59 (Tex. App.—

Austin 2007, no pet.); United States v. Arvizu, 534 U.S. 266, 274 (2002).

Furthermore, lawful conduct can form the basis for reasonable suspicion and the

“as consistent with innocent activity as with criminal activity” analysis has been

expressly rejected by the Court of Criminal Appeals. Woods v. State, 956 S.W.2d

33 (Tex. Crim. App. 1997).

      In considering the totality of the circumstances, reasonable suspicion must

be based upon commonsense judgments and inferences about human behavior,

taking into consideration the training and experience of the peace officers


                                           8
involved. Tanner, 228 S.W.3d at 855; see Curtis v. State, 238 S.W.3d 376, 381

(Tex. Crim. App. 2007). Facts available to an officer plus reasonable inferences

from those facts in relation to a particular place may arouse justifiable suspicion.

Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1986) overruled on other

grounds by McKenna v. State, 780 S.W.2d 797 (Tex. Crim. App. 1989). Courts

require only a “minimal level of objective justification” on the part of the officer.

Tanner, 228 S.W.3d at 855 (citing U.S. v. Sokolow, 490 U.S. 1, 7 (1989). An

officer’s determination of the likelihood of criminal activity need not rise to the

level required for probable cause, and it falls considerably short of satisfying a

preponderance of the evidence standard. Id. at 856 (citing Arvizu, 534 U.S. at 274).

      The Texas courts have developed a large body of case law regarding

swerving on a roadway and the part it plays in developing reasonable suspicion of

driving while intoxicated. The majority agree that weaving paired with another bad

driving behavior will usually amount to reasonable suspicion. Hernandez v. State,

983 S.W.2d 867, 870 (Tex. App.—Austin 1998, pet. ref’d) (citing, e.g., Fox, 900

S.W.2d 345). However, while many cases have found reasonable suspicion only

where weaving is combined with other driving behaviors, this is not always

required. See Curtis, 238 S.W.3d at 377. The officer’s training, experience, and

inferences drawn from observations of weaving can also give rise to reasonable

suspicion without any additional driving behavior. Id. at 381.


                                          9
      Appellant relies heavily on Hernandez to support his position, but this

reliance is misplaced. See 983 S.W.2d at 867; Appellant’s Brief at 15. In

Hernandez, the appellant’s vehicle crossed one white line one time before being

pulled over by the officer. Id. at 868. The officer did not observe anything else that

would lead him to believe the driver was intoxicated and did not provide any

objective circumstances from which he could infer intoxication. Id. However, the

deputies in the instant case did provide an objective framework within which to

evaluate Appellant’s driving behavior: it was after midnight on Memorial Day on a

road leading from Canyon Lake (1 R.R. at 8-9). Further, by the time the deputies

observed Appellant weaving, they had already seen him drive over the center

yellow line into oncoming traffic (1 R.R. at 10, 15, 18).

      Dowler is more applicable to Appellant’s case than Hernandez. In Dowler,

the officer observed a vehicle drift back and forth within its lane, travel twenty

miles per hour under the posted speed limit, and touch the outside white line more

than once. 44 S.W.3d at 668-69. The Dowler Court reiterated the point that

although there was nothing inherently criminal in weaving within a lane or driving

under the speed limit, these factors could still give rise to reasonable suspicion of

driving while intoxicated under a totality of the circumstances analysis. Id. at 670.

The facts in Dowler fairly mirror those in the instant case, where Appellant was




                                          10
observed to weave within his lane, ride the center line, and have inconsistent speed

(1 R.R. at 15, 21-22, 28). See 44 S.W.3d at 668-69.

        Likewise, in Fox v. State, the Fort Worth Court of Appeals found reasonable

suspicion in circumstances which parallel those in Appellant’s case. 900 S.W.2d at

346. In Fox, the appellant’s vehicle passed the officer without crossing the yellow

line or causing the officer to swerve. See id. at 345. The officer did not recognize

the vehicle and ran its plates. Id. As she waited for the results, the officer followed

the vehicle for about four miles. Id. The officer observed that the vehicle would

weave back and forth within its lane and fluctuate in speed within the range of 55-

40 mph. Id. The officer then initiated a traffic stop. Id.

        The appellant in Fox argued there was no reasonable suspicion to stop him.

Id. at 347. The court of appeals, noting the officer’s testimony that the appellant’s

speed was fluctuating and that he was weaving back and forth within his lane, held

that:

        [t]his testimony alone provided sufficient specific facts to support the
        trial court’s finding that [the appellant’s] temporary detention was
        lawful. Although none of the acts in which [the appellant] engaged
        prior to the initiation of the stop were inherently illegal, each was
        sufficient to create a reasonable suspicion that some activity out of the
        ordinary was or had occurred.

Id. The court affirmed the trial court’s denial of the motion to suppress.

        In the instant case, the deputies had even more facts and circumstances

giving rise to a reasonable suspicion than were present in Fox. Appellant was

                                           11
traveling away from Canyon Lake after midnight on Memorial Day (1 R.R. at 8-9).

As Appellant approached the deputies, they observed that the car in front of them

had to swerve to the shoulder to avoid Appellant’s vehicle (1 R.R. at 10, 27). The

deputies likewise had to swerve to avoid Appellant’s vehicle, and Deputy Sepeda

observed Appellant’s tire cross the yellow line (1 R.R. at 9-10, 15, 18, 28). Aside

from the late hour, none of the foregoing factors were present in Fox, where the

officer merely noted that she did not recognize that appellant’s car prior to

following it. 900 S.W.2d at 345.

      In addition to the foregoing events, the deputies further observed – as in Fox

– that Appellant would weave back and forth within his lane and fluctuate in speed

(1 R.R. at 15, 21, 28). Appellant apparently argues that because the deputies failed

to use radar to get the exact speed of his vehicle, no evidence of fluctuation exists.

See Appellant’s Brief at 17. However, both deputies testified to the inconsistent

speed and the trial court found that testimony credible (1 R.R. at 15, 28; supp. C.R.

at 4). Further, State’s Exhibit 1 shows the deputies’ speed fluctuated from 40-55

mph as they followed Appellant (see State’s Exhibit 1 at 00:34:00-37:45).

Appellant argues that the fluctuation in his speed should not be considered because

it was not as great as that in Fox, but it is exactly the same as the fluctuation

observed in Fox. See id.; 900 S.W.2d at 347; Appellant’s Brief at 17. In any event,

this piecemeal comparison is exactly what the Court of Criminal Appeals rejected


                                         12
in Tanner. 228 S.W.3d at 857-858 (following Ornelas v. United States, 517 U.S.

690 (1996) and Arvizu, 534 U.S. 266). Finally, Appellant argues that Fox is

distinguished from the instant case because of the type of road involved. See Fox,

900 S.W.2d at 347; Appellant’s Brief at 18. Appellant offers no support for his

suggestion that the type of road figures in to the analysis, and his characterization

of FM 306 as a “rural, curvy farm to market road” is not supported by the record (1

R.R. at 16-17; see also State’s Exhibit 1 at 00:32:50-33:07, 00:34:00-37:45).

      Another consideration in the totality of the circumstances analysis – which

Appellant ignores altogether – is the training and experience of the deputies. See

Curtis, 238 S.W.3d at 381. Although Deputy Sepeda was fairly new to the patrol

aspect of law enforcement, Corporal Lehr had considerably more experience (1

R.R. at 7, 24-25). At the time of this incident, Corporal Lehr had been a peace

officer for over sixteen years, was in a leadership position with the Comal County

Sheriff’s Office, and was a Field Training Officer (Id. at 24-25). Notably, the

officer in Fox gave no testimony whatsoever regarding her experience in the field.

900 S.W.2d 345, 348 (Livingston, J., dissenting). From his training and experience,

Corporal Lehr was able to recognize that something was wrong with Appellant,

and he suspected that it was intoxication (1 R.R. at 28-29). Deputy Sepeda was

also able to make this inference based on his training even though he had not

actually conducted a DWI stop prior to that night (Id. at 20).


                                         13
      The deputies had reasonable suspicion Appellant might be driving while

intoxicated after more than one car had to swerve to avoid Appellant, his tire

crossed the center lane, and he subsequently swerved within his lane and failed to

control his speed as Appellant drove away from Canyon Lake near midnight on

Memorial Day. Despite Appellant’s futile attempts to distinguish Fox, it is

apparent that the cumulative facts, surrounding circumstances, and reasonable

inferences in this case meet or exceed those which Fox and other Texas cases have

found sufficient to meet the minimal level of objective justification required to

conduct a traffic stop.

      In giving almost total deference to the trial court’s determination of the facts

and the credibility of witnesses, it is clear that the record supports the trial court’s

conclusion that Deputies Sepeda and Lehr had sufficient information to give rise to

reasonable suspicion that Appellant was operating a motor vehicle while

intoxicated. See Tanner, 228 S.W.3d at 857 (citing Ornelas, 517 U.S. at 699).

Because it is reasonably supported by the record, the Court of Appeals should

affirm the trial court’s denial of Appellant’s Motion to Suppress.




                                          14
                                        Prayer

      Wherefore, premises considered, Appellee prays that this Honorable Court

of Appeals affirm in all matters the judgment of the trial court in this case.


                                                                      Jennifer Tharp
                                                           Criminal District Attorney

                                                                                   By

                                                              /s/ Abigail L. Whitaker
                                                                Abigail L. Whitaker
                                                                     SBN: 24051915
                                                            Misdemeanor Prosecutor
                                                        150 N. Seguin Ave., Ste. 307
                                                          New Braunfels, TX 78130
                                                                      (830) 221-1300
                                                                  Fax (830) 608-2008
                                                      E-mail: whitaa@co.comal.tx.us
                                                                Attorney for the State




                                          15
                                Certificate of Service

       I, Abigail L. Whitaker, attorney for the State of Texas, Appellee, hereby
certify that a true and correct copy of this Brief for the State has been delivered to
Appellant MICHAEL MARRERO’s attorney of record in this matter:

The Law Offices of Jamie Balagia
Hallye C. Braud
313 South Main
San Antonio, Texas 78204
Telephone: (210) 394-3833
Facsimile: (210) 271-3833
Email: hallye@dwidude.com

By electronically sending it to the above email address through efile.txcourts.gov
e-filing service, this 27th day of February, 2015.

                                                              /s/ Abigail L. Whitaker
                                                                Abigail L. Whitaker




                                         16
                             Certificate of Compliance

       I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas
Rules of Appellate procedure that the instant brief is computer-generated using
Microsoft Word and said computer program has identified that there are 3,411
words within the portions of this brief required to be counted by Rule 9.4(i)(1) &
(2) of the Texas Rules of Appellate Procedure.
       The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.

                                                              /s/ Abigail L. Whitaker
                                                                  Abigail L. Whitaker




                                         17
