Darrell Edward Redmond v. State ( 2006 )

Affirmed and Memorandum Opinion filed June 29, 2006

Affirmed and Memorandum Opinion filed June 29, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00565-CR

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DARRELL EDWARD REDMON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court of Chambers County

Chambers County, Texas

Trial Court Cause No. 23113-04

M E M O R A N D U M   O P I N I O N

            After the trial court denied his motion to suppress, appellant Darrell Edward Redmon pleaded guilty to driving while intoxicated.  In a single issue, appellant claims the trial court erred in denying his motion to suppress.  We affirm.

                                                               Background

            During a routine patrol on June 11, 2004 at approximately 2:47 a.m., Deputy Pepper Sterner of the Chambers County Sheriff’s Department noticed appellant on a motorcycle

parked in an unlit church parking lot.  Deputy Sterner found these circumstances suspicious and turned around to investigate, but before he arrived at the parking lot, appellant had pulled onto a five-lane state highway.  Deputy Sterner followed appellant and saw that he appeared to be arguing with his female passenger, whose arms were “flaying.”  During this apparent argument, appellant swerved into the center turn lane two to three times.  In response, Deputy Sterner stopped appellant and subsequently arrested him for driving while intoxicated.

            Appellant filed a motion to suppress, arguing that the traffic stop was not justified because there was no evidence that his swerving was unsafe.  After a hearing, the trial court denied the motion, appellant entered a plea of guilty, and this appeal followed.

                                                                    Analysis

            When, as here, the facts underlying a motion to suppress are undisputed, we review the trial court’s denial of a motion to suppress de novo.  Cook v. State, 63 S.W.3d 924, 927 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).  A police officer must have reasonable suspicion of criminal activity to begin an investigative detention.  See Terry v. Ohio, 392 U.S. 1, 30 (1968); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997); Eichler v. State, 117 S.W.3d 897, 900 (Tex. App.—Houston [14th Dist.] 2003, no pet.).  We determine the reasonableness of a temporary detention by examining the totality of the circumstances.  Woods, 956 S.W.2d at 38; Cook, 63 S.W.3d at 927. An officer may lawfully stop and detain a person who commits a traffic violation.  McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993); Cook, 63 S.W.3d at 929 n.5.

            The Transportation Code provides that a driver on a roadway laned for traffic “shall drive as nearly as practical entirely within a single lane” and “may not move from the lane unless that movement can be made safely.”  Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999).  Appellant argues that he committed no statutory violation to justify the traffic stop.  He claims that, even though he swerved, it was not unsafe because Deputy Sterner testified that there were no other vehicles nearby.  We have previously refused to interpret section 545.060 to generally allow weaving so long as no other vehicles are in the immediate vicinity.[1] Cook, 63 S.W.3d at 928; Gajewski v. State, 944 S.W.2d 450, 453 (Tex. App.—Houston [14th Dist.] 1997, no pet.).  There is no requirement that a particular statute be violated to give rise to reasonable suspicion.  Cook, 63 S.W.3d at 929 n.5; Gajewski, 944 S.W.2d at 452. 

            “Although not an inherently illegal act, when the officer observed appellant’s car weaving between traffic lanes, reasonable suspicion existed to believe appellant was driving the motor vehicle while intoxicated, or that some activity out of the ordinary is or has occurred, so as to justify the temporary stop of defendant’s car.”  Gajewski, 944 S.W.2d at 452; see also Townsend v. State, 813 S.W.2d 181, 185 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d).  In this case, appellant was driving his motorcycle early in the morning while arguing with a passenger and swerving two to three times into a turn lane used by oncoming traffic.  “We conclude that this sort of behavior is sufficiently unsafe so that the officer was not required to wait until appellant placed himself or others in immediate peril as a result of his erratic driving.”  Cook, 63 S.W.3d at 928.  We thus conclude that Deputy Sterner was justified in stopping appellant.  See Gajewski, 944 S.W.2d at 453 (upholding traffic stop based on appellant weaving two to three times); see also Townsend, 813 S.W.2d at 185 (“[O]ne of the functions of patrol officers is to investigate what they reasonably perceive to be erratic or unsafe driving by motorists on public streets.”).  Therefore, the trial court did not err in denying appellant’s motion to suppress.  We overrule appellant’s sole

issue and affirm the trial court’s judgment.

                                                                        /s/        Leslie Brock Yates

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed June 29, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).

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^[1] Appellant relies on two cases to support his argument that the traffic stop was unjustified because there were no other vehicles in the vicinity.  See Eichler, 117 S.W.3d at 901; Hernandez v. State, 983 S.W.2d 867, 871–72 (Tex. App.—Austin 1998, pet. ref’d).  These cases are distinguishable because, unlike here, they both involved only one lane change and no evidence of other unsafe behavior, such as crossing into a lane used by oncoming traffic and arguing with a passenger while driving a motorcycle.