Ero, Jonathan Eguaeosa Idele v. State

AFFIRMED; Opinion Filed November 1,2012.
In The
(!Iinirt uf Appia1s
!Fifth tHatritt uf Ji.xaa at t1a1ta
No. 05-10-01 177-CR
JONATHAN ECUALOSA lDlLF ERO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court At Law No. 6
Collin County, Texas
Trial Court Cause No. 006-80519-11)
OPINION
Before Chief Justice Wright and Justices Moseley and Campbell
Opinion By Justice Campbell
t
Appellant was charged by information with driving while intoxicated. See Tux. PENAL CODE
ANN. § 49.04(a) (West Supp. 2012). He waived his right to a juiy trial and tried his case before the
court. The trial court found him guilty and assessed his punishment at 120 days’ confinement in the
county jail and a fine of $800. Imposition of the jail time was suspended and appellant was placed
on community supervision for fifteen months. Appellant raises a sole point of error, claiming that
“the stop of Appellant’s vehicle was not based on articulable facts supporting suspicion of criminal
The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment.
ae1ivity” We disagree and affirm.
FACTS
On .Januarv I 7. 20 0. between I :0 am. and I: So a.m.. ( )llicer Jason Moses of the Piano
Police Depart ment was traveling south on Iii hwa 75 when he observed appel lants vehicle
traveling slowly compared to other traffic on the highway. Moses began to follow appellant and
executed a trallic stop after seeing appellant’s vehicle swerve inside its lane from white line to white
line; drive onto the shoulder and back onto the road: straddle the line br approximately six seconds:
and change lanes without signaling Moses stopped appellant’s vehicle. After approaching the
vehicle, Moses smelled an alcoholic beverage in the vehicle and inquired whether appellant had
consumed any alcohol. Appellant admitted he had consumed “a little.”
\ses administered a series of field sobriety tests to appellant, including the l-IGN test, the
one-leg stand test, and the walk-and-turn test. All of the tests indicated appellant was intoxicated.
Moses also administered a portable breath test to appellant, which did not reveal the presence of
alcohol because appellant did not blow bard enough. Moses arrested appellant for driving while
intoxicated because he was of the opinion that appellant had lost the normal use of his mental and
physical faculties due to alcohol consumption.
ARcu1ENTs OF PARTIES
Appellant contends the police did not have reasonable suspicion that a crime was being
committed when Moses stopped him, thus violating appellant’s Fourth Amendment protection
against illegal seizure. The State responds appellant waived his right to contest the seizure because
he failed to file a motion to suppress and he failed to object during trial to the admissibility of
evidence that was seized. Alternatively, the State contends Officer Moses had ample reasonable
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suspicion to stop appellant.
Sixiw o R:viiw
In rcvie ing a trial court s rulmg on a motion to suppress. an appellate court must apply a
standard of abuse of discretion and overturns the trial court’s ruling only if it is outside the zone of
reasonable disa.’rcement. IJUrI1JIL’: v. Stcte. 34$ SW.3d 919. 922 ( [cx. (‘rim. App. 2011). An
appellate court must apph a hilircated standard ol review, giving almost total deference to a trial
court’s determination of historic facts and mixed questions of law and lhct that rely upon the
credihi lily of a witness. hut applying a de nova standard of review to pure questions of law and
mixed questions that do not depend on credibility determinations. Id. at 922—23.
WAIvER
As a threshold matter, the State argues appellant has waived his Fourth Amendment claim
by failing to file a motion to suppress or argue the claim at trial. The State primarily relies on
Palacios v. Stale, 319 S.W.3d 68 (Tex. App—San Antonio 2010, pet. rerd). for the proposition that
appellant waived any claim by failing to file a written motion to suppress or object at trial. The State
argues that appellant’s attack on the officer’s stop of appellant’s vehicle came too late since it came
at closing argument. The State cites no authority for this proposition. Closing argument is a discrete
part ofa trial. In any event, the facts in Pa/ac/os are sienificantly different from those in the instant
case.
In Palacios the State sought to offer contraband marijuana contained in a suitcase into
evidence, and the defendant affirmatively stated “no objection.” Pa/acios, 319 S.W.3d at 71—72.
And even though Palacios had, on file, a motion to suppress, his claim was denied on the basis of
an affirmative waiver. Id. at 74. In the instant case, appellant vigorously cross-examined Officer
Moses on both reasonable suspicion and probable cause, and then in final argument before the trial
court, he aruued that probable cause br arrest had not been shown. I rum this record, it appears that
appellant was at tacking both the o fl jeer’s reasonable Suspicion and probable cause to stop appel lam’s
vehicle. Unfortunately, in his final argument to the trial court, appellant mixes reasonable suspicion
and probable cause toether into a blended mass of concepts. using the phrase “probable cause” as
ifit were a talisman for all Fourth Amendment claims. Ilowever, even if the State is correct or if the
question of waiver is lefl undecided, the issue is rendered insigniflcant because we conclude the
evidence reflects both reasonable suspicion and probable cause.
M ERITS—FOU RTI I Ar1EN LThZIENT
Reasonable suspicion for a warrantless detention exists when an officer has specific,
articulable facts, along with any rational inferences, that lead him to reasonably conclude that a
person is, has been, or soon will be, engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21
(1968). In determining reasonable suspicion, the trial court looks at the totality of circumstances to
inform whether there was an objective basis fbr the stop. frrd v. Slate, 158 S.W.3d 488, 492—93
(Tex. Crim. App. 2005). This includes circumstances that may seem innocent enough when viewed
in isolation, hut when combined, suggest that criminal activity may be afbot. Woody v. State, 956
S.W.2d 33,38 (Tex. Crim. App. 1997).
During trial and in his briet appellant contends that an officer who effectuates a Terry-type
stop based on a traffic violation, must be able, through the prosecutor, to prove all the elements of
that traffic offense. He further contends that what the officer observes must be against the law. In
the cases cited by appellant, the temporary stops were based on make-or-break situations that failed
to pass muster fbr one reason or another. See, e.g.. State v. Dixon, 206 S.W.3d 587 (Te. Crim. App.
-4-
2
0 fl6) ( concludine stop was in :tlid where the trial court tound defendant did not cornmt the two
alleged trahic violations), In the instant case, the facts show a series of inchoate driving events that
nit miatelv led to the stop.
Moses initially observed appellant driving slower than the other highway traflic, Moses then
filowed appellant and observed tour additional inchoate events--- -appellant swerved inside of his
lane from white line to white line: he drove onto the shoulder and back onto the road: he straddled
the white line Ihr approximately six seconds: and he changed lanes without signaling. While some
of these acts by appellant constituted inchoate traffic offenses and perhaps were not sustainable
beyond a reasonable doubt, they formed a pattern of conduct that led Moses to conclude that
appellant’s driving was dangerous, and ultimately led him to stop appellant’s vehicle. The facts in
this case are closely analogous to those in Derichsweiier v. State, 348 SW.3d 906 (Tex. Crim. App.
201 1).
In Derichsweiler, civilian eyewitnesses observed the defendant drive up close to their vehicle
and stare, then grin at them for thirty seconds to a minute while they were in a drive-thru line at
McDonalds. See Id. at 909. When the witnesses were asked to pull forward to wait on their food, the
defendant drove up and positioned his car in front of theirs, then drove around the building and
pulled up again behind and to the left of them, repeating the same conduct. See Id. While the
witnesses called the police to report the defendant’s conduct, they observed him drive into a nearby
Walmart parking lot, where the defendant repeated the same conduct with two other vehicles. See
id. at 910. Police approached the defendant’s vehicle, detained the defendant, and then smelled a
strong odor of alcohol emanating from his vehicle, lie was arrested and charged with driving while
intoxicated. See Id. at 910—Il.
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the Court of criminal appeals ranted review in Deru hs we//er to determine whether the hicts
adduced thatj ive rise to a reasonable suspicion must sho that the detainee has committed, is
committing, or is about to commit, a particular and distinctively identifiable penal offense. ec id.
at iP) I hat (ourt stated:
unlike the case with probable cause to justif an arrest, it is not a sine qua nun of
reasonable suspicion that a detaining officer be able to pinpoint a particular penal
infraction. The reason is simple but fundamental. A briel investigative detention
constitutes a significantly lesser intrusion upon the privacy and integrity ot the person
than a lull blown custodial arrest. [or this reason. a warrantlcss investigative
detention may be deemed reasonable’ for Fourth Amendment purposes on the basis
of a lesser quantum or quality of information—reasonable suspicion rather than
probable cause. . . Particularly with respect to information suggesting that a crime
.
is about to occur, the requirement that there be some indication that the unusual
activity is related to crime’ does not necessarily mean that the information must lead
inexorably to the conclusion that a particular and identifiable penal code offense is
imminent.
Id. at 916-17.
In the instant case, Moses possessed enough information to not only believe appellant
committed trafilc violations hut also to he suspicious appellant was driving while intoxicated. While
at the moment of detention any one traffic violation may not have been probable beyond a reasonable
doubt, the five instances ofimpaired driving were enough to cause reasonable suspicion that criminal
activilv was afoot.
Additionally, Moses had probable cause to arrest appellant for driving while intoxicated. In
addition to the evidence supporting the Terry stop. the following was developed after the detention
was effectuated: appellant admitted lie drank ‘a little” that night: and he exhibited intoxication on
three field sobriety tests, including the HGN test. We conclude these three tests when added to the
five instances of drivmg violations, more than support the trial court’s finding of probable cause to
arrest appellant for driving while intoxicated. Appellant’s sole point of error is overruled.
The trial court’s judgment is affirmed.
JUSTICE, ASSO
I)o Not Publish
TEX, R, Ar. P.47
101 177FU05
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(!tiatrt uf Apprab3
3ift1! Thiütirt Lif exw tt Ja11a
JUDGMENT
J( )N\l1 1\.N lXi1JAEOS\ 1Dli1 IRE), Appeal irom the County Court At Law No. 6
Appellant of Collin County. Texas. (FrCt.No. 006-
80519—10).
No. 05-10-01 177-CR v Opinion delivered 1w Justice Campbell.
Chief Justice Wright and Justice Moselev
‘FIlE STATE OF ‘ItXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment ot the trial court FIRMED.
Judgment entered
(.1 i\R .1 S F. (‘AvlPBI :i .1.
.J ‘S FR’I:. .‘\SSIGNEI)