Leming, James Edward ( 2015 )


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  •                                                                     PD-0072-15
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 5/20/2015 3:47:40 PM
    Accepted 5/22/2015 10:48:52 AM
    ABEL ACOSTA
    No. PD-0072-15                                     CLERK
    IN THE COURT OF CRIMINAL APPEALS
    OF THE STATE OF TEXAS
    JAMES EDWARD LEMING, Appellant
    v.
    THE STATE OF TEXAS, Appellee
    Appeal from Gregg County
    * * * * *
    STATE’S BRIEF ON THE MERITS
    * * * * *
    May 22, 2015
    LISA C. McMINN
    State Prosecuting Attorney
    Bar I.D. No.13803300
    P.O. Box 13046
    Austin, Texas 78711
    information@spa.texas.gov
    512/463-1660 (Telephone)
    512/463-5724 (Fax)
    NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT
    Appellant: James Edward Leming.
    Appellee: The State of Texas.
    Trial Judge: Hon. Alfonso Charles.
    Trial and appellate counsel for Appellant: Clement Dunn, Attorney at Law, 140 East
    Tyler Street, Suite 240, Longview, Texas 75601.
    Trial counsel for the State: Christopher Botto, Assistant District Attorney, 101 East
    Methvin, Suite 333, Longview, Texas, 75601.
    Appellate counsel for the State: Zan Colson Brown, Assistant District Attorney, 101
    East Methvin, Suite 333, Longview, Texas, 75601, and Lisa C. McMinn, State
    Prosecuting Attorney, P.O. Box 13046, Capitol Station, Austin, Texas 78711.
    i
    TABLE OF CONTENTS
    INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
    STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
    STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    1) Must a movement into another lane of traffic be unsafe before it
    can be deemed a violation of TEX. TRANSP. CODE § 545.060(a)?
    2) Should a tip be deemed reliable when a person calls police to
    report erratic driving, provides his first name, remains on the
    telephone with the dispatcher, and follows the suspect’s car until an
    officer arrives and the officer is able to independently corroborate
    information the caller provided?
    3) Did the court of appeals err by reversing the trial judge’s ruling
    on a motion to suppress that Appellant committed a traffic violation
    when the same facts objectively demonstrated reasonable suspicion?
    STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
    SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
    ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
    PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
    CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
    CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
    ii
    INDEX OF AUTHORITIES
    Alabama v. White, 
    496 U.S. 325
    (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
    Baldwin v. State, 
    278 S.W.3d 367
    (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . 11
    Bass v. State, 
    64 S.W.3d 646
    (Tex. App.– Texarkana 2001). . . . . . . . . . . . . . . . . . 4
    Boykin v. State, 
    818 S.W.2d 782
    (Tex. Crim. App. 1991)... . . . . . . . . . . . . . . . . . . 5
    Curtis v. State, 
    238 S.W. 376
    , 380 (Tex. Crim. App. 2007).. . . . . . . . . . . 12, 13, 14
    Derichsweiler v. State, 
    348 S.W.3d 906
    (Tex. Crim. App. 2011). . . . . . . . . . . . . 11
    Devenpeck v. Alford, 
    543 U.S. 146
    , 153 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 15
    Foster v. State, 
    326 S.W.3d 609
    (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . 12, 14
    Fox v. State, 
    900 S.W.2d 345
    (Tex. App.– Fort Worth, 1995).. . . . . . . . . . . . . . . 12
    Hernandez v. State, 
    983 S.W.2d 867
    (Tex. App.–Austin 1998).. . . . . . . . . . . . . . . 5
    Innes v. State, 
    293 S.W. 821
    (Tex. Crim. App. 1926) .. . . . . . . . . . . . . . . . . . . . . 13
    Illinois v. Gates, 
    463 U.S. 213
    (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
    Leming v. State, 
    454 S.W.3d 78
    (Tex. App.–Texarkana, 2014)... . . . . . . . . . . 1, 4, 9
    Lothrop v. State, 
    372 S.W.3d 187
    (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . 7, 8
    Mahaffey v. State, 
    316 S.W.3d 633
    (Tex. Crim. App. 2010). . . . . . . . . . . . . . . .5, 6
    Martinez v. State, 
    348 S.W.3d 919
    (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . 9
    Navarette v. California, 
    134 S. Ct. 1683
    (2014).. . . . . . . . . . . . . . . . . . . . . . . . . . 10
    Plouff v. State, 
    192 S.W.3d 213
    (Tex. App. – Houston [14th Dist.] 2006).. . . . . . 13
    State v. Cerny, 
    28 S.W.3d 796
    (Tex. App.– Corpus Christi 2000).. . . . . . . . . . . . . 5
    iii
    State v. Duarte, 
    389 S.W.3d 349
    (Tex. Crim. App. 2012)... . . . . . . . . . . . . . . . . . . 9
    State v. Elias, 339. S.W.3d 667 (Tex. Crim. App. 2011) .. . . . . . . . . . . . . . . . . . . 15
    State v. Esparza, 
    413 S.W.3d 81
    (Tex. Crim. App. 2013). . .. . . . . . . . . . . . . . . . 14
    State v. Field, 
    847 P.2d 1280
    (Kan. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
    State v. Tarvin, 
    972 S.W.2d 910
    (Tex. App.–Waco 1998). . . . . . . . . . . . . . . . . . . . 5
    Texas v. Brown, 
    460 U.S. 730
    (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
    Volosen v. State, 
    277 S.W.3d 77
    (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . 14
    Statutes
    TEX. GOV’T CODE § 311.021(2)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    TEX. TRANSP. CODE §131.902(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    TEX. TRANSP. CODE § 203.031(a-1)(4)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
    TEX. TRANSP. CODE § 257.026 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    TEX. TRANSP. CODE § 545.051(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    TEX. TRANSP. CODE § 545.058(a)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    TEX. TRANSP. CODE § 545.060(a).. . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 6, 7, 8, 14, 15
    TEX. TRANSP. CODE § 545.101(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    Other
    http://www.mirriam-webster.com/dictionary/practical.. . . . . . . . . . . . . . . . . . . . . 6n
    http://www.vocabulary.com/articles/chooseyourwords/practical-practicable. . . . 6n
    iv
    No. PD-0072-15
    IN THE COURT OF CRIMINAL APPEALS
    OF THE STATE OF TEXAS
    JAMES EDWARD LEMING,                                                       Appellant
    v.
    THE STATE OF TEXAS,                                                        Appellee
    * * * * *
    STATE’S BRIEF ON THE MERITS
    * * * * *
    TO THE HONORABLE COURT OF CRIMINAL APPEALS:
    The State Prosecuting Attorney respectfully presents to this Court its brief on
    the merits.
    STATEMENT REGARDING ORAL ARGUMENT
    The State did not request argument and the Court did not grant it.
    STATEMENT OF THE CASE
    Appellant pled guilty to felony driving while intoxicated and was sentenced to
    ten years’ confinement. He appealed the denial of his motion to suppress. The Court
    of Appeals reversed. Leming v. State, 
    454 S.W.3d 78
    (Tex. App.–Texarkana, 2014).
    1
    ISSUES PRESENTED
    1) Must a movement into another lane of traffic be unsafe before it can be deemed
    a violation of TEX. TRANSP. CODE § 545.060(a)?
    2) Should a tip be deemed reliable when a person calls police to report erratic
    driving, provides his first name, remains on the telephone with the dispatcher, and
    follows the suspect’s car until an officer arrives and the officer is able to
    independently corroborate information the caller provided?
    3) Did the court of appeals err by reversing the trial judge’s ruling on a motion to
    suppress that Appellant committed a traffic violation when the same facts objectively
    demonstrated reasonable suspicion?
    STATEMENT OF FACTS
    A Longview police officer was dispatched to a busy road at approximately 2:00
    p.m. to investigate a report from a caller named “Arliss” that a white Jeep was
    “swerving from side to side.” RR2: 6-8. The officer located the Jeep and advised the
    caller, who was still following it, to “back off.” RR2: 7. The officer followed the
    car and saw it drift left to the center line and back to the right several times, coming
    within a few inches of the curb twice. RR2: 8. He testified that the “tires were on the
    stripes.” RR2:8. The officer also noted that the car was traveling thirteen miles per
    hour below the speed limit and continued to slow as he followed it. RR2: 8, 15. He
    believed the driver was “somehow impaired” or had “a medical issue” and that
    swerving and low speed “was an indication that the driver is somehow either
    distracted or physically not able to operate his motor vehicle correctly.” RR2: 9.
    2
    The officer stopped the car and ultimately arrested Appellant for driving while
    intoxicated. RR2: 12-13. The patrol car’s dash camera video of the stop and the
    moments preceding it was admitted into evidence. RR2: 9-10.
    The trial court denied the motion to suppress, stating that a traffic violation
    occurred when Appellant’s car, “cross[ed] the center stripe and move[ed] partially
    into another lane of traffic.” CR: 13-14. The court also noted that “the officer had
    received information from a named informant that the car was driving erratically.”
    CR: 13-14.
    SUMMARY OF THE ARGUMENT
    Section 545.060(a) of the Transportation Code includes two requirements: 1)
    that a driver remain in one lane if it is practical to do so, and 2) that any departure
    from the lane be done safely. Failure to abide by either provision is a violation.
    Therefore, the officer’s observation of Appellant’s tires crossing the stripes without
    apparent reason justified the stop, even if his departure from the lane was not unsafe.
    The 911 report about Appellant’s car swerving from side to side was sufficiently
    reliable to be considered in the analysis because the caller provided his first name,
    location, and a description of the suspect car, which he followed until police arrived
    and “waived him off.” The report and the officer’s observations were sufficient to
    provide reasonable suspicion of driving while intoxicated even if the officer did not
    3
    subjectively suspect intoxication. Specialized training or experience is not necessary
    to support objectively reasonable suspicion that, regardless of the time of day, a
    driver who demonstrably weaves for an extended period of time is intoxicated.
    ARGUMENT
    Court of Appeals’ opinion
    The Court of Appeals held that the car’s movement did not constitute a traffic
    offense because, even assuming it crossed into another lane of traffic, Appellant’s
    driving was not unsafe. 
    Leming, 454 S.W.3d at 83
    . It also held that Arliss was not
    a “named” informant, equating him instead with an anonymous caller. 
    Id. at 83-84.
    Because no traffic violation occurred, the Court reasoned that the stop was justified
    only if the officer was acting in his community caretaking function, which, it held, he
    was not. 
    Id. at 84,
    86.
    TEX. TRANSP. CODE § 545.060(a)
    Section 545.060 states, “(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 that movement can be made
    safely.” The Court of Appeals held that movement out of a single lane does not
    violate the statute unless it is unsafe, citing Bass v. State, 
    64 S.W.3d 646
    , 651 (Tex.
    4
    App.– Texarkana 2001, pet. ref’d).1 Bass relied on Hernandez v. State, 
    983 S.W.2d 867
    (Tex. App.–Austin 1998, pet. ref’d), which held that the vagueness of the “as
    nearly as practical” clause in subsection (1) indicates it was not intended to be a
    separate requirement apart from safety. 
    Id. at 871.
    However, under TEX. GOV’T CODE § 311.021 (2), it is presumed that the entire
    statute was intended to be effective. It seems unlikely that the Legislature gave the
    “as nearly as practical” clause its own subsection but intended that it be entirely
    superfluous. In addition, general statutory construction principles do not permit terms
    in a statute that are ambiguous to be ignored. Instead, when a term is ambiguous, the
    reviewing court uses extratextual sources to discern the legislative intent. Boykin v.
    State, 
    818 S.W.2d 782
    , 785-86 (Tex. Crim. App. 1991).
    Hernandez found “as nearly as practical” to be ambiguous because the
    Legislature chose the term practical, which it defined as “manifested in practice;
    capable of being put to good use,” rather than practicable, meaning, “capable of being
    accomplished; feasible; possible.” 
    Id. (quoting Bryan
    A. Garner, A Dictionary of
    Modern Legal Usage 678 (2d ed. 1995)). However, practical has other definitions
    1
    This Court has acknowledged the opinions in Bass, State v. Cerny, 
    28 S.W.3d 796
    , 800 (Tex. App.– Corpus Christi 2000, no pet.), and State v. Tarvin,
    
    972 S.W.2d 910
    , 910-11 (Tex. App.–Waco 1998, pet. ref’d), but has not adopted
    their interpretation of the statute. Mahaffey v. State, 
    316 S.W.3d 633
    , 640 n.35
    (Tex. Crim. App. 2010).
    5
    that make more sense in the context in which it is used in this statute. See 
    Mahaffey, 316 S.W.3d at 635
    (noting several definitions of “turn” but using the one that applied
    in the context of driving when construing a Transportation Code provision). Miriam
    Webster defines practical, inter alia, as “likely to succeed and reasonable to do or
    use.”2
    Practical and practicable have similar meanings; their distinction is primarily
    one of usage. Practical is akin to sensible or reasonable, and practicable is closer to
    feasible or possible.3 In that light, either practical or practicable make sense in the
    context of the statute.4 Practical, however, allows the driver a bit more leeway. So
    2
    http://www.merriam-webster.com/dictionary/practical
    3
    http://www.vocabulary.com/articles/chooseyourwords/practical-practicable
    With regard to traffic lanes, the Transportation Code appears to use
    4
    practical and practicable synonymously. See TEX. TRANSP. CODE § 545.060(a);
    TEX. TRANSP. CODE § 545.051(b) (“An operator of a vehicle... shall drive in the
    right-hand lane available for vehicles, or as close as practicable to the right-hand
    curb or edge of the roadway...”); TEX. TRANSP. CODE § 545.101(a) (“To make a
    right turn at an intersection, an operator shall make both the approach and the turn
    as closely as practicable to the right-hand curb or edge of the roadway.”). The
    Transportation Code uses these terms in other contexts as well. See TEX. TRANSP.
    CODE §131.902(d) (“No other route is possible or practicable.”); TEX. TRANSP.
    CODE § 257.026 (road district annexation permitted if it is “feasible and
    practical.”). TEX. TRANSP. CODE § 203.031(a-1)(4)(B) includes the phrase, “the
    most practicable extent possible.” In that provision, practicable must mean
    something other than possible, otherwise it would be nonsensical. This example
    illustrates the importance of considering the context of undefined terms in a
    statute.
    6
    while it may be feasible or possible to drive entirely in one lane, it may not be
    sensible or reasonable to do so if there is a large pothole or turtle5 in the lane. Under
    those circumstances, it might be more reasonable to temporarily leave one’s lane to
    avoid the obstacle. Similarly, while it is possible to remain entirely in one’s lane
    behind a slow-moving bicycle, it may not be reasonable to do so. Under those
    circumstances, it is reasonable (or practical) to pass, by either leaving the lane entirely
    or moving partially into another lane until the pass is completed. Sometimes it is
    reasonable to use both lanes at the same time, straddling the line marker. This may
    occur in icy conditions or when a road is flooded and the only clear path requires
    taking up two lanes. The practicality requirement of section 545.060(a) prohibits
    indiscriminate straddling, aimless weaving, or capricious lane changing, but it allows
    departure from the lane for sensible reasons.
    When subsections (1) and (2) are read together, the statute requires a driver to
    remain entirely in a single lane as nearly as is sensible or reasonable to do so but, if
    it is reasonable or sensible to deviate, the operator must do so safely. This
    requirement of both practicality and safety is consistent with TEX. TRANSP. CODE §
    545.058(a), which permits driving on the shoulder if: 1) it is necessary to achieve one
    of the purposes enumerated in the statute, and 2) it may be done safely. Lothrop v.
    5
    See 
    Mahaffey, 316 S.W.3d at 640
    .
    7
    State, 
    372 S.W.3d 187
    , 190-91 (Tex. Crim. App. 2012). Lothrop held, “the offense
    of illegally driving on an improved shoulder can be proved in one of two ways: either
    driving on the improved shoulder was not a necessary part of achieving one of the
    seven approved purposes, or driving on the improved shoulder could not have been
    done safely.” 
    Id. That same
    rationale applies to this statute.
    Section 545.060 allows a driver to move out of his lane if it is impractical to
    remain in a single lane and the movement can be performed safely.6 The Court of
    Appeals erred by reading the practicality element completely out of the statute.
    Regardless of whether it was safe for Appellant to leave his lane, it reasonably
    appeared to be sensible or reasonable for him to remain in his lane without drifting
    or deviating from it. Therefore, the traffic stop was valid.
    911 call
    The Court of Appeals refused to consider Arliss’ report that Appellant’s car
    was “swerving from side to side” in its analysis of the validity of the stop because
    “there was no evidence presented that would have given [the officer] any reason to
    6
    This Court need not decide in this case whether the statute proscribes
    separate offenses or separate manners and means of committing the same offense,
    only that both subsections must be followed and failure to do either is an offense.
    8
    attribute credibility to the caller.” 
    Leming, 454 S.W.3d at 83
    -84.7          However,
    “[R]easonable suspicion can arise from information that is less reliable than that
    required to show probable cause. . .” Alabama v. White, 
    496 U.S. 325
    , 330 (1990).
    And Arliss’ report was sufficiently reliable to be considered in the determination of
    whether the stop of Appellant’s car was valid.
    This Court has recognized a continuum of reliability of civilian reports to
    police, from a named “concerned citizen” who reports a crime in the performance of
    his civic duty at one end of the spectrum to a “snitch” with ulterior motives at the
    other end. State v. Duarte, 
    389 S.W.3d 349
    , 355-56 (Tex. Crim. App. 2012). “The
    citizen-informer is presumed to speak with the voice of honesty and accuracy.” 
    Id. at 356.
    This presumption is based, in part, on the fact that he is not associated with the
    “criminal milieu,” as is the snitch. 
    Id. But a
    named informer is also more trustworthy
    due to the element of accountability; by identifying himself to police, he is subject to
    liability if his report is false. Martinez v. State, 
    348 S.W.3d 919
    , 923 (Tex. Crim.
    App. 2011). An anonymous tipster, who cannot be held accountable and whose
    reliability is unknown, does not enjoy this presumption. 
    Id. 7 The
    Court also did not believe the videotape showed the car “swerving
    from side to side” as Arliss reported, but only “drifting.” 
    Id. at 84.
    However,
    Arliss’ observations occurred before the officer arrived. Appellant could have
    been swerving earlier and moderated to a “drift” when the officer began following
    and videotaping him.
    9
    In Navarette v. California, 
    134 S. Ct. 1683
    (2014), Highway Patrol officers
    received an anonymous 911 call that identified the make, license plate, and location
    of a truck that had nearly run the caller off the road. 
    Id. at 1689.
    An officer spotted
    the truck several miles from the reported location and conducted a stop. 
    Id. The Supreme
    Court noted that anonymous tips are normally insufficiently reliable because
    the veracity of the tipster is unknowable. 
    Id. at 1688.
    However, it held that under the
    facts in that case, the report had sufficient indicia of reliability. 
    Id. at 1688-89.
    First
    the report was entitled to greater weight because it included a detailed description of
    the incident and the caller claimed to be an eyewitness. “[An informant’s] explicit and
    detailed description of alleged wrongdoing, along with a statement that the event was
    observed firsthand, entitles his tip to greater weight than might otherwise be the
    case.” 
    Navarette, 134 S. Ct. at 1689
    , quoting Illinois v. Gates, 462 U.S. 213(1983).
    Second, the officers confirmed the truck’s location. 
    Id. Third, the
    report was made
    immediately after the incident, and contemporaneous reports of criminal activity
    made under the stress of excitement have been treated as “especially reliable.” 
    Id. And fourth,
    use of the 911 system provided further proof of the caller’s veracity. 
    Id. at 1689-90.
    Because the system has known identifying and tracing features, “a
    reasonable officer could conclude that a false tipster would think twice before using
    such a system.” 
    Id. at 1690.
    10
    All the Navarette factors are present in this case. Arliss was an eyewitness who
    followed Appellant until police arrived. He described Appellant’s driving while, or
    shortly after, observing it, and police were able to locate his and Appellant’s vehicles
    based on the description he provided. Like Navarette, Arliss used the 911 system, but
    he also gave police his first name. Under these circumstances a reasonable person
    could deduce that police had access to his: first name, cell phone number, and the
    licence plate number of his car. This information is arguably more identifying than
    just the first and last name of a presumptively reliable “concerned citizen.” Arliss’
    account of Appellant’s car “swerving from side to side” was reliable and should be
    considered in the analysis of the traffic stop.
    Reasonable suspicion of DWI
    Reasonable suspicion exists when, examining the totality of the circumstances,
    a police officer has specific, articulable facts that, combined with rational inferences
    from those facts, would lead a reasonable officer to conclude the defendant is, has
    been, or soon will be engaged in criminal activity. Derichsweiler v. State, 
    348 S.W.3d 906
    , 914 (Tex. Crim. App. 2011). This standard is less demanding than
    probable cause, and probable cause in turn “falls far short of a preponderance of the
    evidence.” Baldwin v. State, 
    278 S.W.3d 367
    , 371 (Tex. Crim. App. 2009).
    Arliss’ report and the officer’s observations were sufficient to provide
    11
    reasonable suspicion of driving while intoxicated. Appellant’s car was seen swerving
    from side to side, crossing the lane marker, twice almost hitting the curb, and
    traveling 13 miles per hour below the speed limit. In Curtis v. State, 
    238 S.W. 376
    ,
    380 (Tex. Crim. App. 2007), this Court held that a traffic stop was justified when the
    car wove in and out of its lane several times late at night. See also Fox v. State, 
    900 S.W.2d 345
    , 347 (Tex. App–Fort Worth, 1995), pet. dism’d improv. granted, 
    930 S.W.2d 607
    (Tex. Crim. App. 1996) (weaving within lane and fluctuating speed
    provided reasonable suspicion for stop).8
    This Court has relied on an officer’s “training and experience” to find that
    weaving provides reasonable suspicion of driving while intoxicated. See Foster v.
    State, 
    326 S.W.3d 609
    (Tex. Crim. App. 2010) (“In light of...Thomas’s training and
    experience, and Foster’s aggressive driving, it was rational for Thomas to have
    inferred that appellant may have been intoxicated.”); 
    Curtis, 238 S.W.3d at 380
    (“...it
    was part of [officer’s] training that a driver’s weaving in and out of a lane was a
    possible indication that the driver was intoxicated.”). But specialized knowledge is
    not required for something so obvious and commonplace. Intoxication is sufficiently
    8
    The Kansas Supreme Court has examined cases from other jurisdictions
    and determined that weaving within the lane is alone sufficient to support
    reasonable suspicion of intoxication. See State v. Field, 
    847 P.2d 1280
    , 1284-1286
    (Kan. 1993), and cases cited therein.
    12
    prevalent that lay witnesses have long been deemed competent to give an opinion
    about it. Innes v. State, 
    293 S.W. 821
    , 822 (Tex. Crim. App. 1926) (opinion on
    reh’g). It is a matter of common knowledge that intoxication diminishes a person’s
    coordination, balance, and mental agility. Plouff v. State, 
    192 S.W.3d 213
    , 223-24
    (Tex. App. – Houston [14th Dist.] 2006, no pet). And it is universally understood that
    intoxication affects one’s ability to drive a car. Weaving is the hallmark of an
    intoxicated driver, much like staggering is a classic indicator that a pedestrian is
    intoxicated. Even a layman who sees frequent, pronounced weaving assumes that the
    driver is impaired. It does not take specialized training or experience to reasonably
    suspect driving while intoxicated under these circumstances.9 This is distinguishable
    from facts not widely known outside law enforcement or the criminal element, such
    as balloons being used to carry narcotics. See Texas v. Brown, 
    460 U.S. 730
    , 742-43
    (1983).
    Some cases also rely, in part, on the time of day of the traffic stop or its
    location near bars to find that bad driving allows reasonable suspicion of intoxication.
    9
    Both sober and intoxicated drivers may speed, fail to use their signals, or
    drive badly in other ways, but weaving almost always suggests some type of
    impairment. While it is possible that impairment can be caused by sleepiness or
    diabetic coma, the possibility of an innocent explanation does not defeat the
    reasonableness of the suspicion that impairment is due to alcohol or drugs. See
    
    Curtis, 238 S.W.3d at 378-79
    (reiterating Court’s rejection of the “as consistent
    with innocent activity” test.).
    13
    See, e.g., 
    Foster, 326 S.W.3d at 611
    , 614 (relying on officer’s testimony that “it is
    common for many people to be impaired in Austin’s Sixth Street bar district late at
    night.”); 
    Curtis, 238 S.W.3d at 381
    (court considered lateness of the hour in its
    analysis). While those factors bolster a finding of reasonable suspicion, especially
    if the driving facts are weak, they need not always be present to reasonably suspect
    that intoxication is the cause of demonstrably poor driving.
    Perhaps the Court of Appeals did not address reasonable suspicion for driving
    while intoxicated because the State’s argument focused on community caretaking and
    a violation of TEX. TRANSP. CODE § 545.060(a). But because the State prevailed in
    the trial court, it was not obligated to raise alternative arguments or, for that matter,
    any arguments on appeal. Volosen v. State, 
    277 S.W.3d 77
    , 80 (Tex. Crim. App.
    2007). It is the responsibility of the Court of Appeals to review an appellant’s claims
    “including any subsidiary issues that might result in upholding the trial court’s
    judgment.” 
    Id. In State
    v. Esparza, 
    413 S.W.3d 81
    (Tex. Crim. App. 2013), the
    Court reiterated, “[A] first-tier appellate court should reject an appellant’s claim of
    reversible error on direct appeal so long as the trial court correctly rejected it ‘on any
    theory of law applicable to the case,’ even if the trial court did not purport to rely on
    that theory.” 
    Id. at 85
    (citations omitted).
    Here, the officer personally observed weaving and slow speed in heavy traffic.
    14
    Those facts led him to a subjective concern for Appellant’s welfare rather than
    suspicion of a traffic offense or intoxication. But his subjective legal conclusions
    about why the stop was justified are irrelevant. See State v. Elias, 339. S.W.3d 667,
    675 (Tex. Crim. App. 2011) (an officer’s subjective reason for stopping a vehicle
    need not be legitimate as long as the objective facts support the stop). “[A]n arresting
    officer’s state of mind (except for the facts that he knows) is irrelevant to the
    existence of probable cause.” Devenpeck v. Alford, 
    543 U.S. 146
    , 153 (2004). The
    validity of a arrest depends on the facts the officer observes, not whether he names
    the correct offense. 
    Id. Otherwise, “An
    arrest made by a knowledgeable, veteran
    officer would be valid, whereas an arrest made by a rookie in precisely the same
    circumstances would not.” 
    Id. Conclusion The
    stop of Appellant’s car was valid because the officer observed a traffic
    violation. Appellant’s failure to remain in his lane when it was reasonable to do so
    violated section 545.060(a). Even if no violation occurred, the stop was justified by
    reasonable suspicion of DWI based on a reliable 911 report that Appellant was
    swerving from side to side and the officer’s observation of weaving and slow speed.
    These facts would allow a reasonable person to suspect that Appellant was driving
    while intoxicated.
    15
    PRAYER FOR RELIEF
    WHEREFORE, the State of Texas prays that the Court of Criminal Appeals set
    this case for submission, reverse the court of appeals’ judgment, and affirm the
    conviction.
    Respectfully submitted,
    /s/ Lisa C. McMinn
    LISA C. McMINN
    State Prosecuting Attorney
    Bar I.D. No.13803300
    P.O. Box 13046
    Austin, Texas 78711
    information@spa.texas.gov
    512/463-1660 (Telephone)
    512/463-5724 (Fax)
    16
    CERTIFICATE OF COMPLIANCE
    The undersigned certifies that according to the WordPerfect word count tool
    this document contains 4402 words.
    /s/ Lisa C. McMinn
    LISA C. McMINN
    State Prosecuting Attorney
    CERTIFICATE OF SERVICE
    The undersigned certifies that on this 20th day of May, 2015, the State’s Brief
    on the Merits was served electronically on:
    Zan Colson Brown
    Assistant District Attorney
    101 East Methvin, Suite 333
    Longview, Texas, 75601
    Zan.Brown@co.gregg.tx.us
    Clement Dunn
    Attorney at Law
    140 East Tyler Street, Suite 240
    Longview, Texas 75601
    clementdunn@aol.com
    /s/ Lisa C. McMinn
    LISA C. McMINN
    State Prosecuting Attorney
    17