Rebecca Dobbs v. State

Affirmed and Memorandum Opinion filed December 11, 2008 Affirmed and Memorandum Opinion filed December 11, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00873-CR ____________ REBECCA DOBBS, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law No. 4 Harris County, Texas Trial Court Cause No. 1446167 M E M O R A N D U M   O P I N I O N Appellant, Rebecca Dobbs, was arrested and charged with the offense of driving while intoxicated. Prior to trial, appellant filed a motion to suppress all evidence arising out of her detention and arrest. Appellant initially pled not guilty, but changed her plea to guilty after the trial court denied the motion, reserving the right to appeal the suppression issue. Pursuant to a plea agreement, the trial court assessed punishment at three days in jail and a $1,500 fine. Appellant raises a single issue on appeal in which she contends the trial court erred in denying her motion to suppress. We affirm. Background On April 6, 2007, at approximately 8:30 p.m., an unidentified citizen pulled up next to Sergeant Ron Pinkerton of the Houston Police Department and stated that another vehicle had almost hit his car. The citizen pointed Pinkerton in the direction of appellant=s dark sport utility vehicle headed eastbound on Westheimer. Pinkerton began following appellant with a few cars between them. While waiting at a red light, another unidentified motorist pulled up next to Pinkerton and told him that a vehicle ahead of them on Westheimer was Aweaving all over the place.@ When the light changed, Pinkerton fell in behind appellant=s vehicle and began following her. At that time, he saw the vehicle cross over the dividing line into the adjacent lane traveling in the same direction between three and five times. Pinkerton turned on his lights and immediately pulled appellant over. Appellant was the sole occupant of the vehicle. Pinkerton testified that appellant=s Aactions were very slow and deliberate@ as she looked for her driver=s license and proof of insurance. Pinkerton suspected that appellant was intoxicated because she was Aslurring her words a bit@ and Aher eyes appeared sleepy.@ He also noticed the smell of alcohol when he moved closer to the vehicle. She explained she had been at a restaurant with friends, and eventually admitted that she had been drinking. Pinkerton contacted the DWI Task Force Unit and asked them to send one of their officers to the scene. Officers Maffett and Montelongo, members of the DWI Task Force, arrested appellant after performing standard field sobriety testing and determining that she was intoxicated. Prior to trial, appellant filed a motion to suppress any evidence resulting from the traffic stop. She argued that Pinkerton did not have reasonable suspicion to detain her and that she was arrested without probable cause. During trial, the court denied appellant=s motion. On appeal, appellant contends the court erred in denying the motion because the state failed to meet its burden of proving a valid basis for the traffic stop. Reasonable Suspicion While a police officer must have probable cause for a full custodial arrest, a mere stop of an individual for the purposes of investigation does not require such substantial justification. See Terry v. Ohio, 392 U.S. 1, 20B22 (1968). An investigative detention occurs when the police stop and briefly detain an individual to ascertain his identity, the reason for being in the area, or other similar inquiry. Amores v. State, 816 S.W.2d 407, 412 (Tex. Crim. App. 1991). Before a detention is justified, the officer must possess reasonable suspicion to detain the suspect, that is, the officer must have specific, articulable facts, which, in light of his experience and general knowledge, together with rational inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen stopped for investigation. Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994). The articulable facts Amust create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime.@ Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989). There need only be an objective basis for the stop; the subjective intent of the officer is irrelevant. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). If an officer has a reasonable basis for suspecting a person has committed a traffic offense, the officer may legally initiate a traffic stop. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993), superseded by statute on other grounds as stated in Granados v. State, 85 S.W.3d 217, 227B30 (Tex. Crim. App. 2002). The burden is on the State to demonstrate the reasonableness of the traffic stop. Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002). Whether an officer had reasonable suspicion is determined by considering the totality of the circumstances. Garcia, 43 S.W.3d at 530. In conducting the totality of the circumstances determination, we use a bifurcated standard of review: (1) we give almost total deference to a trial court=s determination of historical facts and application of law to any fact questions that turn on credibility and demeanor; and (2) we review de novo the application of law to those fact questions that do not turn on credibility and demeanor. Id. In other words, we give almost total deference to the trial court in determining what the actual facts are but review de novo whether those facts are sufficient to give rise to reasonable suspicion. Id. Appellant claims the issue presented in this case does not turn on credibility and demeanor. She contends Pinkerton=s testimony, even if entirely believed, is insufficient to support reasonable suspicion for the traffic stop. Therefore, we review the trial court=s ruling de novo and determine whether there was sufficient reasonable suspicion to detain appellant. An officer may lawfully stop an individual for a traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000); McVickers, 874 S.W.2d at 664. A routine traffic stop closely resembles an investigative detention. Berkemer v. McCarty, 468 U.S. 420, 439 (1984). Pinkerton based the traffic stop on appellant=s failure to maintain a single lane, in violation of section 545.060 of the Texas Transportation Code.[1] Appellant claims no traffic violation occurred because there is no evidence that her weaving between lanes was unsafe. In support of her argument, appellant notes that Pinkerton testified he did not see appellant come close to hitting another car while she was weaving between lanes. However, we do not interpret section 545.060 as permitting a driver to weave throughout lanes simply because no other vehicles are in the vicinity. Cook v. State, 63 S.W.3d 924, 928 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (citing Gajewski v. State, 944 S.W.2d 450, 453 (Tex. App.CHouston [14th Dist] 1997, no pet.)). Appellant cites several cases to support her argument that weaving into the adjacent lane is not an inherently illegal act and that there must be evidence that movement between lanes is unsafe before it will constitute an offense. See Eichler v. State, 117 S.W.3d 897, 900 (Tex. App.CHouston [14th Dist.] 2003, no pet.); Bass v. State, 64 S.W.3d 646, 650 (Tex. App.CTexarkana 2001, pet. ref=d); Ehrhart v. State, 9 S.W.3d 929, 930 (Tex. App.CBeaumont 2000, no pet.); Corbin v. State, 33 S.W.3d 90, 94 (Tex. App.CTexarkana 2000), rev=d on other grounds, 85 S.W.3d 272 (Tex. Crim. App. 2002); Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.CAustin 1998, pet. ref=d). The present case is easily distinguished from the cited cases. In Eichler, we held that the State did not carry its burden of demonstrating the reasonableness of the stop where the appellant swerved only one time into the adjacent lane traveling in the same direction, and there was no evidence that the movement was unsafe or dangerous. 117 S.W.3d at 901. Similarly, in Bass, there was nothing in the record indicating that Bass left his lane more than one time, and the arresting officer testified that he witnessed no unsafe behavior. 64 S.W.3d at 651. Each of the cases cited by appellant involves failure by the state to demonstrate the reasonableness of the respective traffic stops because the evidence in those cases did not establish that the drivers left their lanes more than one time or that doing so was unsafe. See Ehrhart, 9 S.W.3d at 930 (holding traffic violation did not occur where neither testifying officer provided evidence that the driver=s one-time movement into the adjacent lane was dangerous or unsafe); Corbin, 33 S.W.3d at 94 (holding traffic stop not justified by officer=s testimony that driver=s vehicle moved into the shoulder one time without providing any testimony regarding the safety of such driving); Hernandez, 983 S.W.2d at 870 (holding traffic stop not justified where officer testified there was nothing unsafe about a lane change where he observed a driver drifting into adjacent lane only one time). In the present case, unlike those cited by appellant, Pinkerton testified that he saw appellant=s car move across the line into the adjacent lane between three and five times. See Gajewski, 944 S.W.2d at 453 (upholding traffic stop based on appellant=s weaving two to three times). Although Pinkerton did not see appellant come close to hitting anything, he testified that appellant=s weaving back and forth into the adjacent lane was unsafe because she could have hit a vehicle traveling in the lane next to her. Moreover, we have held that an officer is not required to wait until appellant places herself or others in immediate peril as a result of her erratic driving before stopping her. Cook, 63 S.W.3d at 928. We conclude that the sort of behavior exhibited by appellant is sufficiently unsafe to justify a traffic stop. Id. Additionally, the fact that two different citizen motorists considered appellant enough of a threat to the safety of others to alert Pinkerton to her erratic driving further distinguishes this case. Appellant complains that Pinkerton improperly relied on statements made by two unidentified individuals and his personal observations, which consisted of appellant weaving from her own lane to the adjacent lane. She claims the information provided by the unidentified citizens is too vague and unreliable to provide the factual basis for finding a violation of section 545.060. A tip by an unnamed informant of undisclosed reliability, standing alone, rarely will establish the requisite level of suspicion necessary to justify an investigative detention. State v. Garcia, 25 S.W.3d 908, 912 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (citing Florida v. J.L., 529 U.S. 266 (2000); Alabama v. White, 496 U.S. 325, 329 (1990)). However, there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability from which a police officer may reasonably conclude that detention is justified. See Garcia, 25 S.W.3d at 913. We have recognized that information from a citizen who confronts an officer in person to advise the officer should be given greater weight than an anonymous phone call. Id. (quoting State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.CFort Worth 1995, pet ref=d)). A person who is not connected with the police or who is not a paid informant is Ainherently trustworthy@ when he advises the police. Id. Unlike an anonymous phone call, an individual presenting himself to the officer in person, and doing so while driving a vehicle from which his identity might be easily traced, puts himself in a position to be held accountable for his intervention. Id. Thus, the reliability of the information provided by such an informant is increased. Id. In this case, two different individuals provided Officer Pinkerton information in person, and the information provided was specific as to the time of the alleged criminal activity and precise as to the kind of crime being committed. Id. Moreover, there is nothing in the record before us that would have caused Pinkerton to doubt the reliability or good faith of either informant. Both informants, although unknown to the officer, were sufficiently reliable because they placed themselves in a position where they could have been easily identified and held responsible for their intervention, when they came forward in person to give the officer information. Id. In addition, information provided by the unidentified informants was corroborated by Pinkerton=s direct observations. In a totality-of-the-circumstances analysis, corroboration by the law enforcement officer necessarily goes to the reliability of the information. Id. Corroboration by a police officer means, in light of the circumstances, he confirms enough facts so that he reasonably concludes that the information provided is reliable and a detention is justified. Id. (citing White, 496 U.S. at 330B31). Based on our review of the totality of the circumstances, in light of Officer Pinkerton=s experience and knowledge, and giving the concerned citizens= information the weight it deserves based on the indicia of reliability, we hold the officer corroborated enough facts conveyed to him by the unidentified citizens to justify an investigative stop of appellant=s vehicle. After two motorists notified the officer of appellant=s erratic driving, he observed appellant swerve into the adjacent lane multiple times. Therefore, we hold there was sufficient reasonable suspicion to justify an investigative detention based on the information provided by the concerned motorists and Pinkerton=s corroborating observations. Conclusion We find that the trial court did not err in denying appellant=s motion to suppress. The judgment of the trial court is affirmed. /s/ J. Harvey Hudson Senior Justice Judgment rendered and Memorandum Opinion issued December 11, 2008. Panel consists of Justices Anderson and Frost, and Senior Justice Hudson.* Do Not Publish C Tex. R. App. P. 47.2(b). [1] Section 545.060 provides: A(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 the movement can be made safely.@ Tex. Transp. Code Ann. ' 545.060 (Vernon 1999). * Senior Justice J. Harvey Hudson sitting by assignment.