No. 03-14-00033-CR

__________________________________________________________ 

IN THE COURT OF APPEALS FOR THE THIRD 

DISTRICT OF TEXAS 

__________________________________________________________ 

MICHAEL MARRERO, Appellant 

v.

THE STATE OF TEXAS, Appellee 

__________________________________________________________ 

On Appeal from the County Court at Law Number Two 

 Cause Number 2013CR0098 

Comal County, Texas 

__________________________________________________________ 

 

BRIEF FOR THE STATE 

__________________________________________________________ 

Jennifer Tharp 

Criminal District Attorney 

By

Abigail L. Whitaker 

SBN 24051915 

Assistant Criminal District Attorney 

150 North Seguin Avenue, Suite 307 

New Braunfels, Texas 78130 

(830) 221-1300 

Fax (830) 608-2008 

E-mail: whitaa@co.comal.tx.us 

Attorney for the State 

Oral Argument Is Requested 

ACCEPTED

03-14-00033-CR

4315628

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/27/2015 2:03:24 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/27/2015 2:03:24 PM JEFFREY D. KYLE Clerk
ii

Identity of Parties and Counsel

Attorneys for the Appellant, Michael Marrero

The Law Offices of Jamie Balagia

Jessica E. Bernstein (AT TRIAL)

Hallye C. Braud & Sean Simpson (ON APPEAL)

313 South Main

San Antonio, Texas 78204

Telephone: (210) 394-3833

Facsimile: (210) 271-3833

Email: hallye@dwidude.com

Attorneys for the Appellee, The State of Texas

Comal County Criminal District Attorney’s Office

Abigail L. Whitaker & Ryan V. Vickers (AT TRIAL)

Abigail L. Whitaker (ON APPEAL)

150 North Seguin Avenue, Suite 307

New Braunfels, Texas 78130

Telephone: (830) 221-1300

Facsimile: (830) 608-2008

Email: whitaa@co.comal.tx.us
iii

Table of Contents

Identity of Parties and Counsel................................................................................ ii

Table of Contents..................................................................................................... iii

Index of Authorities................................................................................................. iv

Issues Presented .........................................................................................................1

Statement of Facts......................................................................................................1

Summary of the Argument.........................................................................................3

Argument....................................................................................................................4

I. Standard of Review....................................................................................4

II. Reasonable Suspicion for Traffic Violation...........................................5

III. Reasonable Suspicion for DWI..............................................................8

Prayer .......................................................................................................................15

Certificate of Service ...............................................................................................16

Certificate of Compliance ........................................................................................17
iv

Index of Authorities

Statutes

Tex. Transp. Code Ann. § 545.051 (West, Westlaw 

through 2013 Sess.)............................................................................................5, 6, 7

Tex. Transp. Code Ann. § 545.060 (West, Westlaw 

through 2013 Sess.)............................................................................................5, 6, 7

Cases

Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007)................................8, 9, 13

Dowler v. State, 44 S.W.3d 666 (Tex. App.—Austin 

2001, pet. ref’d)..............................................................................................5, 10, 11

Doyle v. State, 265 S.W.3d 28 (Tex. App.—Houston 

[1st Dist.] 2008, pet. ref’d)......................................................................................5, 6

Foster v. State, 326 S.W.3d 609 (Tex. Crim. App. 2010).........................................5

Fox v. State, 900 S.W.2d 345 (Tex. App.—Fort Worth 

1995), pet. dism’d, improvidently granted, 930 S.W.2d 

607 (Tex. Crim. App. 1996)...........................................................4, 9, 11, 12, 13, 14

Griffin v. State, 54 S.W.3d 820 (Tex. App.—Texarkana 

2001, pet. ref’d)......................................................................................................5, 6

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ........................................4

Hernandez v. State, 983 S.W.2d 867 (Tex. App.—Austin 

1998, pet. ref’d)....................................................................................................9, 10

Johnson v. State, 722 S.W.2d 417 (Tex. Crim. App. 1986) 

overruled on other grounds by McKenna v. State, 780 

S.W.2d 797 (Tex. Crim. App. 1989) .....................................................................6, 9

Johnson v. State, 365 S.W.3d 484 (Tex. App.—Tyler 

2012, no pet.) .............................................................................................................6
v

Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 

2000), abrogated on other grounds by Laster v. State, 275 

S.W.3d 512 (Tex. Crim. App. 2009) .....................................................................6, 7

Ornelas v. United States, 517 U.S. 690 (1996)..................................................12, 14

State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000)..............................................4

Tanner v. State, 228 S.W.3d 852 (Tex. App.—Austin 

2007, no pet.) .......................................................................................8, 9, 12, 13, 14

Tex. Dep’t of Pub. Safety v. Chang, 994 S.W.2d 875 

(Tex. App.—Austin 1999, no pet.)........................................................................6, 7

United States v. Arvizu, 534 U.S. 266 (2002)..................................................8, 9, 12

United States v. Sokolow, 490 U.S. 1 (1989).............................................................9

Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997)...........................................8
1

Issues Presented

1. Did reasonable suspicion exist to conduct a traffic stop on Appellant for 

failing to maintain his vehicle on the right-hand side of the roadway in 

accordance with Texas Transportation Code Section 545.051?

2. Did reasonable suspicion exist to conduct a traffic stop on Appellant for 

driving while intoxicated in violation of Texas Penal Code Section 49.04?

Statement of Facts

Late at night on May 28, 2012, Appellant Michael Marrero was driving 

south on FM 306, a two-lane road with a double-yellow line marking the center 

divide (1 R.R. at 8-9, 16-17). Comal County Sheriff’s Deputies Eric Lehr and 

Gabriel Sepeda were traveling north on the same road (id.; 1 R.R. at 8-9). Deputy 

Sepeda was driving and Corporal Lehr was riding in the passenger seat as a Field 

Training Officer (1 R.R. at 8). One other vehicle was also traveling north a few car 

lengths in front of the deputies’ vehicle (1 R.R. at 10). 

Both Deputy Sepeda and Corporal Lehr observed the vehicle in front of 

them swerve onto the shoulder of the roadway as Appellant’s southbound vehicle 

passed it (1 R.R. at 10, 27). They also observed Appellant’s vehicle nearly crossing 

the center dividing line as it passed the vehicle in front of them (id.). As Appellant 

approached and passed their vehicle, Deputy Sepeda likewise had to swerve to the 

right to avoid a collision (1 R.R. at 9-10, 28). Deputy Sepeda saw the tire of
2

Appellant’s vehicle cross over the center yellow line as the two cars passed each 

other (1 R.R. at 9-10, 15, 18). This was not captured on video because the camera 

is mounted forward-facing on the dashboard of the patrol car and did not have a 

view of Appellant’s vehicle as it passed the deputies’ vehicle (1 R.R. at 15, 18).

Neither deputy saw any obstruction in the roadway (1 R.R. at 10, 27).

Deputy Sepeda performed a U-turn, caught up to Appellant’s vehicle and 

followed him to observe his driving (1 R.R. at 14, 19). Both Deputy Sepeda and 

Corporal Lehr testified that they wanted to be sure something was wrong before 

pulling Appellant over (1 R.R. at 20, 29). While following Appellant, both deputies 

observed him weave within his lane and have inconsistent speed (1 R.R. at 15, 21, 

28). Specifically, Deputy Sepeda testified that Appellant was driving about ten 

miles per hour under the speed limit with fluctuating speed, drifting back and forth 

within his lane, and riding on the center line (1 R.R. at 15, 21-22). Corporal Lehr 

likewise testified that Appellant was unsteady in his lane, going towards both the 

left and right sides several times, and that – unlike most vehicles – he did not 

maintain a constant speed (1 R.R. at 28). Shortly after midnight, Appellant was 

pulled over for failing to maintain a single lane and suspicion of driving while 

intoxicated (1 R.R. at 8-9, 22, 29).
3

Summary of the Argument

There is support in the record for the trial court’s determination that Lehr 

and Sepeda had reasonable suspicion for the traffic stop of Appellant’s vehicle. 

The totality of the circumstances and reasonable inferences drawn from those 

circumstances provided ample grounds to meet the relatively low burden of 

objective, reasonable suspicion. Not only did Appellant commit a traffic offense in 

view of the deputies by crossing the center dividing line of the roadway, but his

driving behavior was such that the deputies developed reasonable suspicion that 

Appellant was driving while intoxicated.

The Appellant’s piecemeal approach to the facts of the case is erroneous; 

Texas precedents dictate that considering the totality of the circumstances is the 

proper approach when evaluating whether or not reasonable suspicion exists and 

further hold that acts which are not inherently criminal can still create reasonable 

suspicion that criminal activity is afoot.

The trial court’s ruling recognized that the State more than met its burden at 

the hearing on Appellant’s Motion to Suppress. Further, the trial court’s findings 

parallel the evidence preserved in the record and fall exactly in line with the body 

of law regarding reasonable suspicion. Because the record and the law support the 

denial of the motion to suppress, the Court should uphold the trial court’s ruling.
4

Argument

I.

Standard of Review

Courts will uphold a trial court’s denial of a motion to suppress absent a 

clear abuse of discretion. Fox v. State, 900 S.W.2d 345, 346-47 (Tex. App.—Fort 

Worth 1995), pet. dism’d, improvidently granted, 930 S.W.2d 607 (Tex. Crim. 

App. 1996). When reviewing a trial court’s ruling on reasonable suspicion in a 

motion to suppress, appellate courts apply the standard set out in Guzman v. State,

955 S.W.2d 85 (Tex. Crim. App. 1997). As noted in State v. Ross:

[1] the appellate courts... should afford almost total deference to a 

trial court’s determination of the historical facts that the record 

supports especially when the trial court’s fact findings are based on 

an evaluation of credibility and demeanor. [2] The appellate court 

should afford the same amount of deference to trial courts’ rulings on 

“application of law to fact questions,” also known as “mixed 

questions of law and fact,” if the resolution of those ultimate questions 

turns on an evaluation of credibility and demeanor. [3] The appellate 

courts may review de novo “mixed questions of law and fact” not 

falling within this category.

32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (emphasis added). Further, even upon 

a de novo review, the trial court’s ruling must be sustained if it is reasonably 

supported by the record and is correct on any theory of law applicable to the case. 

Id. at 855-56.
5

II.

Officers had reasonable suspicion to conduct a traffic stop of Appellant for 

failing to maintain his vehicle on the right-hand side of the roadway in

violation of Texas Transportation Code § 545.051.

In order to lawfully conduct a traffic stop, a peace officer must have 

reasonable suspicion, given the totality of the circumstances, that the driver is

engaged in criminal activity. Dowler v. State, 44 S.W.3d 666, 669 (Tex. App.—

Austin 2001, pet. ref’d). Reasonable suspicion is “specific articulable facts which, 

taken together with rational inferences from those facts, lead [to a conclusion] that 

the person detained is, has been, or soon will be engaged in criminal activity.” Id. 

It is more than a hunch, but only requires a minimal level of objective justification. 

Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010). Further, an officer 

may stop a driver if he has reasonable suspicion that a traffic violation... has been 

committed.” Doyle v. State, 265 S.W.3d 28, 31 (Tex. App.—Houston [1st Dist.] 

2008, pet. ref’d). 

Appellant erroneously contends that he did not commit a traffic violation 

because he did not violate Section 545.060. Appellant’s Brief at 10; Tex. Transp. 

Code Ann. § 545.060 (West, Westlaw through 2013 Sess.). However, it is clear 

from the testimony of the deputies and the findings of the trial court that Appellant 

did commit a traffic offense by violating Section 545.051 (1 R.R. passim). Tex. 

Transp. Code Ann. § 545.051 (West, Westlaw through 2013 Sess.). Pursuant to 

Section 545.051, “[t]raveling across the yellow line into oncoming traffic is a 
6

traffic violation in itself and does not require the additional element of an unsafe

maneuver by the driver as does... § 545.060.” Griffin v. State, 54 S.W.3d 820, 823 

(Tex. App.—Texarkana 2001, pet. ref’d).

1

The Texas courts have consistently held 

that crossing over a center yellow line is a distinct and separate traffic offense from 

weaving across white lines. See Tex. Dep’t of Pub. Safety v. Chang, 994 S.W.2d 

875, 877 (Tex. App.—Austin 1999, no pet.); Doyle, 265 S.W.3d at 32; Griffin, 54 

S.W.3d at 823; Johnson v. State, 365 S.W.3d 484, 489 (Tex. App.—Tyler 2012, no 

pet.).

In this case, Deputy Sepeda’s undisputed testimony is that he observed 

Appellant’s tires cross over the yellow line, and the trial court found that his 

testimony was credible (1 R.R. at 9-10, 15, 18; Suppl. C.R. at 4). Corporal Lehr did 

testify that he did not see Appellant’s vehicle come completely over the line, but he 

also said that he saw Appellant’s vehicle coming toward their lane and that they 

had to make an evasive maneuver to avoid a collision (1 R.R. at 27-28). Corporal

Lehr was in the passenger seat, and as such, was not as close and did not have 

Deputy Sepeda’s view of Appellant’s vehicle (see 1 R.R. at 8, 28). Notably, even if 

the testimony of Deputies Sepeda and Lehr had been completely contradictory, as 

 

1

Section 545.051 states:

(a) An operator on a roadway of sufficient width shall drive on the right half of the roadway, 

unless:

(1) the operator is passing another vehicle;

(2) an obstruction necessitates moving the vehicle left of the center of the roadway....
7

the finder of fact, the trial court was entitled to accept some testimony and reject 

other testimony, in whole or in part. See Margraves v. State, 34 S.W.3d 912, 919 

(Tex. Crim. App. 2000), abrogated on other grounds by Laster v. State, 275 

S.W.3d 512 (Tex. Crim. App. 2009). Further, both deputies observed the vehicle in 

front of them swerve away from Appellant’s vehicle as it passed, and neither 

deputy observed any sort of obstruction in the roadway (1 R.R. at 10, 27).

Appellant mistakenly assumes that the language “failure to maintain a single 

lane” can only apply to Section 545.060, titled “Driving on Roadway Laned For 

Traffic”. However, that language equally applies to Section 545.051, titled 

“Driving on Right Side of Roadway.” While neither title includes the language 

used by the deputies and the trial court, it is obvious from the record and the trial 

court’s findings that both parties were contemplating the lane violation contained 

in Section 545.051. Any further discussion of Section 545.060 is misleading and an 

affront to judicial economy.

The deputies developed reasonable suspicion that Appellant had committed 

a traffic violation when they observed the car in front of them swerve to avoid 

Appellant’s oncoming vehicle, when the deputies also had to swerve to avoid a 

collision, and when Deputy Sepeda observed Appellant’s tire cross the yellow line 

in violation of Section 545.051. See Chang, 994 S.W.2d at 877, 877 n.4 (noting 

that appellant’s driving over the yellow line was sufficient to support a stop for a 
8

traffic violation, and made any discussion of reasonable suspicion to stop for DWI

unnecessary). Therefore, giving almost total deference to the trial court’s 

determination of the facts and the credibility of witnesses, the record clearly 

supports the trial court’s conclusion that Deputies Sepeda and Lehr had reasonable 

suspicion to stop Appellant for a traffic violation. 

III.

Officers had reasonable suspicion to conduct a traffic stop of Appellant for 

driving while intoxicated in violation of Texas Penal Code Section 49.04.

Reasonable suspicion that a motorist is driving while intoxicated is 

determined by a totality of the circumstances analysis specific to each case, and 

individual factors are not to be considered piecemeal; courts should not isolate 

individual facts and decide whether each one independently gives rise to 

reasonable suspicion. Tanner v. State, 228 S.W.3d 852, 857-59 (Tex. App.—

Austin 2007, no pet.); United States v. Arvizu, 534 U.S. 266, 274 (2002). 

Furthermore, lawful conduct can form the basis for reasonable suspicion and the 

“as consistent with innocent activity as with criminal activity” analysis has been 

expressly rejected by the Court of Criminal Appeals. Woods v. State, 956 S.W.2d 

33 (Tex. Crim. App. 1997). 

In considering the totality of the circumstances, reasonable suspicion must 

be based upon commonsense judgments and inferences about human behavior, 

taking into consideration the training and experience of the peace officers 
9

involved. Tanner, 228 S.W.3d at 855; see Curtis v. State, 238 S.W.3d 376, 381

(Tex. Crim. App. 2007). Facts available to an officer plus reasonable inferences 

from those facts in relation to a particular place may arouse justifiable suspicion. 

Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1986) overruled on other 

grounds by McKenna v. State, 780 S.W.2d 797 (Tex. Crim. App. 1989). Courts 

require only a “minimal level of objective justification” on the part of the officer. 

Tanner, 228 S.W.3d at 855 (citing U.S. v. Sokolow, 490 U.S. 1, 7 (1989). An 

officer’s determination of the likelihood of criminal activity need not rise to the 

level required for probable cause, and it falls considerably short of satisfying a 

preponderance of the evidence standard. Id. at 856 (citing Arvizu, 534 U.S. at 274).

The Texas courts have developed a large body of case law regarding 

swerving on a roadway and the part it plays in developing reasonable suspicion of 

driving while intoxicated. The majority agree that weaving paired with another bad 

driving behavior will usually amount to reasonable suspicion. Hernandez v. State, 

983 S.W.2d 867, 870 (Tex. App.—Austin 1998, pet. ref’d) (citing, e.g., Fox, 900 

S.W.2d 345). However, while many cases have found reasonable suspicion only 

where weaving is combined with other driving behaviors, this is not always 

required. See Curtis, 238 S.W.3d at 377. The officer’s training, experience, and 

inferences drawn from observations of weaving can also give rise to reasonable 

suspicion without any additional driving behavior. Id. at 381.
10

Appellant relies heavily on Hernandez to support his position, but this 

reliance is misplaced. See 983 S.W.2d at 867; Appellant’s Brief at 15. In 

Hernandez, the appellant’s vehicle crossed one white line one time before being 

pulled over by the officer. Id. at 868. The officer did not observe anything else that 

would lead him to believe the driver was intoxicated and did not provide any 

objective circumstances from which he could infer intoxication. Id. However, the 

deputies in the instant case did provide an objective framework within which to 

evaluate Appellant’s driving behavior: it was after midnight on Memorial Day on a 

road leading from Canyon Lake (1 R.R. at 8-9). Further, by the time the deputies 

observed Appellant weaving, they had already seen him drive over the center 

yellow line into oncoming traffic (1 R.R. at 10, 15, 18).

Dowler is more applicable to Appellant’s case than Hernandez. In Dowler,

the officer observed a vehicle drift back and forth within its lane, travel twenty 

miles per hour under the posted speed limit, and touch the outside white line more 

than once. 44 S.W.3d at 668-69. The Dowler Court reiterated the point that 

although there was nothing inherently criminal in weaving within a lane or driving 

under the speed limit, these factors could still give rise to reasonable suspicion of 

driving while intoxicated under a totality of the circumstances analysis. Id. at 670.

The facts in Dowler fairly mirror those in the instant case, where Appellant was 
11

observed to weave within his lane, ride the center line, and have inconsistent speed

(1 R.R. at 15, 21-22, 28). See 44 S.W.3d at 668-69.

Likewise, in Fox v. State, the Fort Worth Court of Appeals found reasonable 

suspicion in circumstances which parallel those in Appellant’s case. 900 S.W.2d at 

346. In Fox, the appellant’s vehicle passed the officer without crossing the yellow 

line or causing the officer to swerve. See id. at 345. The officer did not recognize 

the vehicle and ran its plates. Id. As she waited for the results, the officer followed 

the vehicle for about four miles. Id. The officer observed that the vehicle would 

weave back and forth within its lane and fluctuate in speed within the range of 55-

40 mph. Id. The officer then initiated a traffic stop. Id. 

The appellant in Fox argued there was no reasonable suspicion to stop him. 

Id. at 347. The court of appeals, noting the officer’s testimony that the appellant’s 

speed was fluctuating and that he was weaving back and forth within his lane, held 

that:

[t]his testimony alone provided sufficient specific facts to support the 

trial court’s finding that [the appellant’s] temporary detention was 

lawful. Although none of the acts in which [the appellant] engaged 

prior to the initiation of the stop were inherently illegal, each was 

sufficient to create a reasonable suspicion that some activity out of the 

ordinary was or had occurred.

Id. The court affirmed the trial court’s denial of the motion to suppress. 

In the instant case, the deputies had even more facts and circumstances 

giving rise to a reasonable suspicion than were present in Fox. Appellant was 
12

traveling away from Canyon Lake after midnight on Memorial Day (1 R.R. at 8-9). 

As Appellant approached the deputies, they observed that the car in front of them 

had to swerve to the shoulder to avoid Appellant’s vehicle (1 R.R. at 10, 27). The 

deputies likewise had to swerve to avoid Appellant’s vehicle, and Deputy Sepeda 

observed Appellant’s tire cross the yellow line (1 R.R. at 9-10, 15, 18, 28). Aside 

from the late hour, none of the foregoing factors were present in Fox, where the 

officer merely noted that she did not recognize that appellant’s car prior to 

following it. 900 S.W.2d at 345. 

In addition to the foregoing events, the deputies further observed – as in Fox

– that Appellant would weave back and forth within his lane and fluctuate in speed 

(1 R.R. at 15, 21, 28). Appellant apparently argues that because the deputies failed 

to use radar to get the exact speed of his vehicle, no evidence of fluctuation exists. 

See Appellant’s Brief at 17. However, both deputies testified to the inconsistent 

speed and the trial court found that testimony credible (1 R.R. at 15, 28; supp. C.R. 

at 4). Further, State’s Exhibit 1 shows the deputies’ speed fluctuated from 40-55 

mph as they followed Appellant (see State’s Exhibit 1 at 00:34:00-37:45). 

Appellant argues that the fluctuation in his speed should not be considered because 

it was not as great as that in Fox, but it is exactly the same as the fluctuation 

observed in Fox. See id.; 900 S.W.2d at 347; Appellant’s Brief at 17. In any event, 

this piecemeal comparison is exactly what the Court of Criminal Appeals rejected 
13

in Tanner. 228 S.W.3d at 857-858 (following Ornelas v. United States, 517 U.S. 

690 (1996) and Arvizu, 534 U.S. 266). Finally, Appellant argues that Fox is 

distinguished from the instant case because of the type of road involved. See Fox,

900 S.W.2d at 347; Appellant’s Brief at 18. Appellant offers no support for his 

suggestion that the type of road figures in to the analysis, and his characterization 

of FM 306 as a “rural, curvy farm to market road” is not supported by the record (1

R.R. at 16-17; see also State’s Exhibit 1 at 00:32:50-33:07, 00:34:00-37:45).

Another consideration in the totality of the circumstances analysis – which 

Appellant ignores altogether – is the training and experience of the deputies. See

Curtis, 238 S.W.3d at 381. Although Deputy Sepeda was fairly new to the patrol 

aspect of law enforcement, Corporal Lehr had considerably more experience (1 

R.R. at 7, 24-25). At the time of this incident, Corporal Lehr had been a peace 

officer for over sixteen years, was in a leadership position with the Comal County 

Sheriff’s Office, and was a Field Training Officer (Id. at 24-25). Notably, the 

officer in Fox gave no testimony whatsoever regarding her experience in the field.

900 S.W.2d 345, 348 (Livingston, J., dissenting). From his training and experience, 

Corporal Lehr was able to recognize that something was wrong with Appellant, 

and he suspected that it was intoxication (1 R.R. at 28-29). Deputy Sepeda was 

also able to make this inference based on his training even though he had not 

actually conducted a DWI stop prior to that night (Id. at 20).
14

The deputies had reasonable suspicion Appellant might be driving while 

intoxicated after more than one car had to swerve to avoid Appellant, his tire 

crossed the center lane, and he subsequently swerved within his lane and failed to 

control his speed as Appellant drove away from Canyon Lake near midnight on 

Memorial Day. Despite Appellant’s futile attempts to distinguish Fox, it is 

apparent that the cumulative facts, surrounding circumstances, and reasonable 

inferences in this case meet or exceed those which Fox and other Texas cases have 

found sufficient to meet the minimal level of objective justification required to 

conduct a traffic stop. 

In giving almost total deference to the trial court’s determination of the facts 

and the credibility of witnesses, it is clear that the record supports the trial court’s 

conclusion that Deputies Sepeda and Lehr had sufficient information to give rise to

reasonable suspicion that Appellant was operating a motor vehicle while 

intoxicated. See Tanner, 228 S.W.3d at 857 (citing Ornelas, 517 U.S. at 699).

Because it is reasonably supported by the record, the Court of Appeals should 

affirm the trial court’s denial of Appellant’s Motion to Suppress. 
15

Prayer

Wherefore, premises considered, Appellee prays that this Honorable Court 

of Appeals affirm in all matters the judgment of the trial court in this case.

Jennifer Tharp

Criminal District Attorney

 By 

/s/ Abigail L. Whitaker

Abigail L. Whitaker

SBN: 24051915

Misdemeanor Prosecutor

150 N. Seguin Ave., Ste. 307

New Braunfels, TX 78130

(830) 221-1300

Fax (830) 608-2008

E-mail: whitaa@co.comal.tx.us

Attorney for the State
16

Certificate of Service

I, Abigail L. Whitaker, attorney for the State of Texas, Appellee, hereby 

certify that a true and correct copy of this Brief for the State has been delivered to 

Appellant MICHAEL MARRERO’s attorney of record in this matter:

The Law Offices of Jamie Balagia

Hallye C. Braud

313 South Main

San Antonio, Texas 78204

Telephone: (210) 394-3833

Facsimile: (210) 271-3833

Email: hallye@dwidude.com

By electronically sending it to the above email address through efile.txcourts.gov

e-filing service, this 27th day of February, 2015.

/s/ Abigail L. Whitaker

Abigail L. Whitaker
17

Certificate of Compliance

I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas 

Rules of Appellate procedure that the instant brief is computer-generated using 

Microsoft Word and said computer program has identified that there are 3,411

words within the portions of this brief required to be counted by Rule 9.4(i)(1) & 

(2) of the Texas Rules of Appellate Procedure. 

The document was prepared in proportionally-spaced typeface using Times 

New Roman 14 for text and Times New Roman 12 for footnotes. 

/s/ Abigail L. Whitaker

Abigail L. Whitaker