                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-137-CR


JOHNNY ANDREWS BREZINA                                          APPELLANT

                                             V.

THE STATE OF TEXAS                                                   STATE

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     FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  I. Introduction

     In two points, Appellant Johnny Andrews Brezina asserts that (1) his

rights under the Fourth and Fourteenth Amendments to the United States

Constitution were violated when a police officer stopped his vehicle without




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         … See T EX. R. A PP. P. 47.4.
probable cause or reasonable suspicion and (2) the trial court erred when it

overruled Brezina’s motion to suppress. We affirm.

                       II. Factual and Procedural History

      Brezina was charged with the offense of driving while intoxicated, a Class

A misdemeanor. He filed a motion to suppress alleging that the evidence in this

case was obtained as a result of an improper detention. At the hearing on the

motion, the parties stipulated to the facts set forth in the arresting officer’s

written report. Those facts are as follows:

      On 10/19/04, at approximately 0115 hours, Officer W.S. Walls,
      3074, working in 316, was traveling eastbound in the center lane
      at the 8600 block of Camp Bowie Boulevard West. Officer
      observed confiscated vehicle, the white Dodge Ram SUV, also
      traveling in the center lane in the 8600 block of Camp Bowie
      Boulevard West. This officer observed confiscated vehicle go from
      the center lane and turn southbound, onto 3500 Cimmaron Trail
      from center lane, crossing over the outside lane, and without using
      his turn signal. At this time, Officer Walls initiated a traffic stop by
      using red and blue lights on his marked patrol unit. Confiscated
      vehicle pulled into . . . the 7-Eleven parking lot.

      In argument to the court on the motion, Brezina’s counsel asserted that

the arresting officer had stopped Brezina “because he didn’t signal the lane

change prior to his turn, so his turn -- his turning without a signal is incidental.

The basis for the detention is changing lanes without a signal.” He maintained

that “a right-hand turn made without a signal” was “not enough” to justify

Brezina’s detention. The trial court overruled Brezina’s motion to suppress,

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stating that “it appears to me that based upon the narrative, the officer not only

saw [Brezina] go from lane to lane, but he also saw him make a turn off of

Camp Bowie Boulevard onto Cimmaron Trail without using his turn signal.” The

trial judge offered to “reconsider” his finding and his ruling “if anybody wants

testimony on it,” but Brezina declined the court’s offer to hear live testimony.

      Thereafter, Brezina pleaded guilty and was sentenced to thirty days’

confinement in the Tarrant County Jail and a fine of $750.00. This appeal

followed.

                            III. Standard of Review

      The factual background of this case is not in dispute; therefore, we apply

a de novo standard of review. Loesch v. State, 958 S.W.2d 830, 832 (Tex.

Crim. App. 1997); Guzman v. State, 955 S.W.2d 85, 87, 89 (Tex. Crim. App.

1997). This is because the questions presented to us involve the application

of the law to the facts, which were stipulated to and therefore did not turn on

credibility and demeanor. See Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.

2005).

                                 IV. Arguments

      Citing Hernandez v. State, 983 S.W.2d 867 (Tex. App.—Austin 1998,

pet. ref’d), and Corbin v. State, 85 S.W .3d 272 (Tex. Crim. App. 2002),

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Brezina makes the bold assertion that the facts surrounding the stop “violated

the Fourth and Fourteenth Amendments to the U.S. Constitution.” 2 He agrees

that the reasonableness of his temporary detention by the officer is examined

in terms of the totality of circumstances surrounding the stop and is justified

when the officer had specific articulable facts which, along with rational

inferences from those facts, lead him to conclude that the detained person is,

has been, or soon will be, engaged in criminal activity. See Terry v. Ohio, 392

U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche v. State, 10 S.W.3d

323, 328 (Tex. Crim. App. 2000).       That is, an officer conducts a lawful

temporary detention when he has reasonable suspicion to believe that an

individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim.

App. 2005).

                                 V. Analysis

      It is axiomatic that the Fourth Amendment forbids unreasonable searches

and seizures. U.S. C ONST. amend. IV; Terry, 392 U.S. at 20, 88 S. Ct. at

1879.     It is Brezina’s contention that the absence of probable cause or

reasonable suspicion for the vehicle stop was a violation of this amendment.




      2
       … The exclusionary rule of the Fourth Amendment applies to the states
via the Fourteenth Amendment. See Hudson v. Michigan, 547 U.S. 586, 590,
126 S. Ct. 2159, 2163 (2006).

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      When a traffic violation is committed within an officer’s view, the officer

may stop and detain the individual for the traffic violation. Walter v. State, 28

S.W.3d 538, 542 (Tex. Crim. App. 2000); Lemmons v. State, 133 S.W.3d

751, 756 (Tex. App.—Fort Worth 2004, pet. ref’d). The traffic statute in issue

here is section 545.104(a) of the transportation code, which reads: “An

operator shall use the signal authorized by Section 545.106 to indicate an

intention to turn, change lanes, or start from a parked position.” T EX. T RANSP.

C ODE A NN. § 545.104(a) (Vernon 1999). The failure to adhere to this statute

is a traffic offense. Lemmons, 133 S.W.3d at 756; Reha v. State, 99 S.W.3d

373, 376 (Tex. App.—Corpus Christi 2003, no pet.); Krug v. State, 86 S.W.3d

764, 767 (Tex. App.—El Paso 2002, pet. ref’d).

                                VI. Application

      According to the stipulated facts, Officer Walls witnessed Brezina’s

vehicle move from Camp Bowie Boulevard West to Cimmaron Trail, “go[ing]

from the center lane and turn[ing] southbound . . . crossing over the outside

lane, and without using his turn signal.” [Emphasis added.] Hence, the officer

witnessed Brezina violate a statute, and therefore he lawfully stopped and

detained him. No Fourth Amendment rights were violated, and the motion to

suppress was properly overruled. We overrule Brezina’s first and second points.




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                                  VII. Conclusion

         Having overruled Brezina’s two points, we affirm the judgment of the trial

court.




                                              PER CURIAM

PANEL F:       MCCOY, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: July 24, 2008




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