Carey Brian Birmingham v. State ( 2008 )

Affirmed and Memorandum Opinion filed December 11, 2008

Affirmed and Memorandum Opinion filed December 11, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00939-CR

____________

CAREY BRIAN BIRMINGHAM, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 13

Harris County, Texas

Trial Court Cause No. 1420220

M E M O R A N D U M  O P I N I O N

Appellant, Carey Birmingham, was arrested and charged with the misdemeanor offense of driving while intoxicated.  Prior to trial, appellant filed a motion to suppress all evidence arising out the traffic stop.  Appellant initially pled not guilty, but changed his 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 a $300 fine and180 days in jail, which was probated for 1 year. Appellant raises a single issue on appeal in which he contends the trial court erred in denying his motion to suppress.  We affirm.

Background

On December 3, 2006, Harris County Deputy Constable Daniel Garza had just finished filling his patrol car with gasoline when he was Aflagged down@ by an unidentified citizen claiming that another vehicle headed westbound on Spring Cypress Aalmost ran [him] off the road.@  Based on the information provided by the citizen, Garza began following appellant=s vehicle.  At that time, Garza testified he noticed appellant swerving within his lane and saw the vehicle cross over into the oncoming lane at least once.  Garza also testified that appellant almost hit another vehicle while swerving.  After Garza turned on his emergency lights and sirens, appellant drove over a mile and passed several places where he could have safely stopped before pulling to the side of the road.  Deputy Constable Ernest McNabb then arrived on the scene.  McNabb arrested appellant for driving while intoxicated and completed the offense report. 

Prior to trial, appellant filed a motion to suppress any evidence resulting from the traffic stop.  He argued Garza did not have the reasonable suspicion necessary to conduct the stop.  Garza was the only witness who testified at the motion to suppress hearing, and the trial court denied appellant=s motion.  Appellant changed his plea to guilty, reserving the right to appeal the denial of his motion.  On appeal, he 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.

Standard of Review

In reviewing a ruling on a motion to suppress evidence, we afford almost total deference to the trial court=s determination of the historical facts, while reviewing de novo mixed questions of law and fact not turning on an evaluation of credibility and demeanor.  See Guzman v. State, 955 S.W.2d 85, 87B88 (Tex. Crim. App. 1997).  Questions of reasonable suspicion and probable cause are reviewed de novo on appeal. See id. at 87 (citing Ornelas v. United States, 517 U.S. 690 (1996)).  This standard applies because the trial court is in a better position to determine the credibility and demeanor of the witnesses.  Id. On the other hand, if the issue is whether an officer had probable cause to seize a suspect, under the totality of the circumstances, the trial judge is not in an appreciably better position than the reviewing court to make that determination.  Id.  When, as in this case, the trial court does not file findings of fact, we view the evidence in the light most favorable to the trial court=s ruling and assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.  Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). 

In this instance, appellant argues we should set aside the Aalmost total deference@ standard so that we may assess Deputy Garza=s credibility based on the record.  Appellant would have us hold that the trial court improperly denied the motion to suppress because the decision was based only on Garza=s testimony, the reliability of which appellant asserts was seriously undermined by a number of perceived inconsistencies.^[1] However, the rule requiring that we give almost total deference to the trial court=s evaluation of witness credibility and demeanor is long-standing and well-established.  Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006); Manzi v. State, 88 S.W.3d 240, 243 (Tex. Crim. App. 2002) (en banc); Guzman v. State, 955 S.W.2d at 89.  We decline to adopt a different standard simply because appellant challenges the officer=s credibility.  We may fairly assume the trial court, in weighing Garza=s credibility, considered the claimed Ainconsistencies@ and nonetheless opted to believe the witness.  Sembera v. Petrofac Tyler, Inc., 253 S.W.3d 815, 824 (Tex. App.CTyler 2008, pet. denied) (citing Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 557 (Tex. App.CTyler 2007, pet. denied)).  Therefore, viewing Garza=s testimony in the light most favorable to the trial court=s ruling, we will review it de novo and determine whether there was sufficient reasonable suspicion to detain appellant for investigative purposes.

Reasonable Suspicion

Although 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.  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).  Garza based the traffic stop on appellant=s failure to maintain a single lane in violation of section 545.060 of the Texas Transportation Code.^[2] Appellant claims the State has failed to demonstrate that Garza had reasonable suspicion to make the stop because weaving between lanes, by itself, is insufficient justification for a traffic stop.  Appellant cites cases from other courts of appeals to support his argument.  See State v. Cerny, 28 S.W.3d 796, 800B01 (Tex. App.CCorpus Christi 2000, no pet.); State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.CWaco 1998, pet. ref=d); Hernandez v. State, 983 S.W.2d 867, 870B71 (Tex. App.CAustin 1998, pet. ref=d).  The present case is easily distinguished from those cited.

In Cerny, failure to maintain a single lane was the only reason for the traffic stop.  28 S.W.3d at 799.  Based on the evidence presented at the hearing on the motion to suppress, the trial court found that Cerny=s vehicle touched the line, but that he did not cross into the next lane.  Id.  The court of appeals concluded the officer did not articulate facts sufficient to detain Cerny.  Id. at 801.  In Tarvin, after hearing testimony from the officer who initiated the traffic stop, the trial court determined that Tarvin was weaving within his own lane, and there was no evidence that he ever left his lane.  972 S.W.2d at 911.  The officer also testified that he did not suspect any criminal activity, other than failure to maintain a single lane, and noticed Anothing else unusual@ about Tarvin=s driving.  Id. at 912.  However, both the Cerny and Tarvin courts noted that Amere weaving in one=s own lane of traffic can justify an investigatory stop when that weaving is erratic, unsafe, or tends to indicate intoxication or other criminal activity.@  Cerny, 28 S.W.3d at 800; Tarvin, 972 S.W.2d at 912.  In Hernandez, appellant was arrested after he drifted into the adjacent lane traveling in the same direction one time.  983 S.W.2d at 868.  The arresting officer testified there was nothing unsafe about the movement between lanes and there was no other reason for the traffic stop.  Id.  Because there was no evidence the lane change was unsafe, the court held the State failed to demonstrate that the stop was reasonable.  Id. at 872.

In the present case, unlike those cited by appellant, Garza testified that he saw appellant=s car move into the adjacent lane where it almost collided with another vehicle.  Thus, there is evidence that appellant drifted outside of his lane, evidence that was lacking in both Cerny and Tarvin.  The officer=s testimony regarding the near collision further demonstrates that the movement between lanes was unsafe, which the evidence failed to establish in Hernandez. Because of the dissimilarity between the cases cited by appellant and the instant case, we cannot agree with appellant=s assertion. Moreover, we have held that swerving into another lane on just one occasion is sufficient to stop a motorist for violating section 545.060.  Myles v. State, 946 S.W.2d 630, 633B34 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d); see also Martinez v. State, 29 S.W.3d 609, 611B12 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d) (holding that drifting partially onto shoulder of freeway for one or two seconds and pulling back was sufficient for officer to reasonably believe that violation of section 545.060 had occurred)).  Thus, we conclude that appellant=s weaving within his own lane and movement into the adjacent lane where he nearly collided with another car provided a reasonable basis for suspecting he had committed a traffic offense.

Additionally, the fact that an unidentified citizen considered appellant enough of a threat to the safety of others to alert Garza to appellant=s erratic driving further distinguishes this case.  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 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, an unidentified individual provided Deputy Garza 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 Garza to doubt the reliability or good faith of that informant.  The informant, although unknown to the officer, was sufficiently reliable because he placed himself in a position where he could have been easily identified and held responsible for his intervention.  See id. 

In addition, information provided by the unidentified informant was corroborated by Garza=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 that, in light of the circumstances, he confirms enough facts so that he reasonably concludes that the information provided is reliable and that 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 Deputy Garza=s experience and knowledge, and giving the concerned citizen=s information the weight it deserves based on the indicia of reliability, we hold the officer corroborated enough facts conveyed to him by the unidentified citizen to justify an investigative stop of appellant=s vehicle.  After the motorist notified the officer of appellant=s erratic driving, he observed appellant swerve into the adjacent lane, almost striking another vehicle.  Therefore, we hold there was sufficient reasonable suspicion to justify an investigative detention based on the information provided by the concerned motorist and Garza=s corroborating observations.  See id.

Conclusion

We hold 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]  Garza testified that he saw appellant swerve into the adjacent lane, almost hitting another vehicle, but it is unclear whether he was referring to an oncoming lane of traffic or one moving in the same direction.  Garza also initially testified that appellant=s vehicle drifted over the Afog line,@ but later claimed it was the center line and not the fog line.  Finally, Garza testified that he caught up with appellant after pursuing him for only 200 feet, which appellant claims is impossible, further demonstrating the unreliability of his testimony.  

Appellant also complains Garza=s testimony was unreliable because he did not complete an offense report. Instead, he conveyed the facts surrounding appellant=s detention to Deputy McNabb for inclusion in the offense report.  The report simply stated, Athe vehicle weaving unsafely from lane to lane.@ Thus, Garza testified largely from memory.  Appellant asserts the testimony was unreliable because Garza recalled facts about the stop from memory that were not included in the offense report. 

^[2]  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.