In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-12-00005-CR 

MICHU MINOR, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 47th District Court 

Potter County, Texas 

Trial Court No. 60,228-A, Honorable Dan L. Schaap, Presiding 

 

November 14, 2013 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

Appellant Michu Minor appeals his conviction for possessing five pounds or less 

but more than four ounces of marijuana.1 After finding appellant guilty, a jury assessed 

punishment at two years‟ confinement in a state jail with a fine of $10,000. It 

recommended suspension of the sentence of incarceration and imposition of community 

supervision. The trial court sentenced appellant according to the jury‟s verdict. On 

 

1

TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(3) (West 2010).
2

appeal, appellant contends the trial court abused its discretion by denying his pre-trial 

motion to suppress evidence seized by a Texas Department of Public Safety trooper. 

Finding no error by the trial court, we will overrule appellant‟s issue and affirm the 

judgment.

Background

On July 4, 2010, the trooper was patrolling Interstate 40 near Amarillo. 

Approaching the city from the west, he overtook a vehicle driven by appellant. The 

trooper activated the video and audio recorder in his vehicle and the trial court viewed 

the recording before ruling on appellant‟s suppression motion.2 

According to the trooper he followed appellant for approximately three miles on 

the interstate. Along the way, he observed appellant weaving within his lane. The 

speed of appellant‟s vehicle was about seven to eight miles per hour below the posted 

limit. The trooper also observed appellant leaning over the steering wheel as he drove. 

The trooper did not activate his vehicle‟s emergency lights or otherwise direct appellant 

to pull over. Rather, he continued following as appellant exited the interstate on the 

west side of Amarillo and parked in a restaurant parking lot. 

The trooper positioned his vehicle at an angle to the side and rear of appellant‟s 

vehicle. The trooper was in uniform with a holstered weapon. As he approached, the 

trooper‟s first words to appellant were, “Texas Highway Patrol. Sir you haven‟t been 

drinking or anything today have you? Sir I followed you all the way back in and you 

were weaving within the lanes and everything else.” 

 

2

The State played a portion of the video during the hearing and the trial court 

stated it would view the entire video before ruling on the motion.
3

While inquiring about appellant‟s driver‟s license and trip information the trooper 

noticed marijuana “shake” or residue on the floorboard of appellant‟s vehicle. He also 

smelled burnt marijuana on appellant‟s person and the odor of raw marijuana inside 

appellant‟s vehicle.

Appellant gave the trooper permission to search his vehicle and watched the 

procedure while seated on a nearby curb. Within a speaker box in the rear of 

appellant‟s vehicle, the trooper discovered several bundles of marijuana.3 A pistol was 

also found. Appellant was arrested for possession of the contraband.

Prior to trial, appellant sought suppression of evidence seized in the search of his 

vehicle. The hearing on appellant‟s motion focused on whether the trooper detained 

appellant without reasonable suspicion to conduct an investigative detention or whether 

the contact with appellant in the restaurant parking lot was merely a consensual 

encounter with probable cause latter attaching when the trooper saw the marijuana 

shake in the vehicle. By written order, the trial court denied appellant‟s motion without 

explanation. Written findings of fact and conclusions of law were neither requested nor 

filed. 

Analysis

Through a single issue on appeal, appellant argues the trial court erred because 

the evidence showed the trooper conducted an investigative detention while lacking 

reasonable suspicion that crime was afoot. 

 

3 According to the trial testimony of a Department of Public Safety forensic 

scientist, the bundled substance submitted for analysis amounted to 3.90 pounds of 

marijuana.
4

A trial court‟s ruling on a motion to suppress is reviewed for abuse of discretion. 

Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). In a suppression hearing, 

the trial court is the sole judge of the credibility of the witnesses and the weight given 

their testimony. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000). We 

afford almost total deference to the trial court‟s determination of historical facts. 

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Thus, we afford the 

prevailing party in the trial court the “strongest legitimate view of the evidence and all 

reasonable inferences that may be drawn from that evidence.” State v. Garcia-Cantu,

253 S.W.3d 236, 241 (Tex. Crim. App. 2008). However, detention and reasonable 

suspicion are by nature legal concepts and are properly subject to de novo review. 

Hunter v. State, 955 S.W.2d 102, 107 (Tex. Crim. App. 1997); Sanders v. State, 992 

S.W.2d 742, 744 (Tex. App.—Amarillo 1999, pet. ref‟d). Accordingly, for purposes of a 

Fourth Amendment analysis we give appropriate deference to the trial court‟s 

determination of historical facts, but we review the decision of the trial court de novo as 

to whether the historical facts, viewed from the standpoint of an objectively reasonable 

person so situated as was the police officer, amount to “reasonable suspicion” justifying 

an investigatory detention. Ornelas v. United States, 517 U.S. 690, 697-99, 116 S.Ct. 

1657, 134 L.Ed.2d 911 (1996); Guzman, 955 S.W.2d at 89. When, as here, no findings 

of fact were requested nor filed, we review the evidence in the light most favorable to 

the trial court‟s ruling and assume the trial court made implicit findings of fact supported 

by the record. See Ross, 32 S.W.3d at 855. We will sustain the decision of the trial 

court if it is correct under any theory applicable to the case. Id. at 855-56.
5

We will assume, but do not decide, that the trooper‟s initial contact with appellant 

in the restaurant parking lot was an investigative detention and not a consensual

encounter.4 But this assumption does not of itself impugn the order of the trial court. 

We think resolution of the appellate issue is governed by a determination whether, when 

the trooper initially contacted appellant, he possessed specific and articulable facts 

which, along with rational inferences drawn therefrom, gave rise to a reasonable 

suspicion that appellant was driving while intoxicated. 

Law enforcement officers may stop and briefly detain persons suspected of 

criminal activity on less information than is constitutionally required for probable cause 

to arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An 

investigatory detention is reasonable, and therefore constitutional, if (1) the officer‟s 

action was justified at the detention‟s inception; and (2) the detention was reasonably 

related in scope to the circumstances that justified the interference in the first place. 

Terry, 392 U.S. at 19-20. Under the first prong of Terry, the officer “must be able to 

point to specific and articulable facts which, taken together with rational inferences from 

those facts, reasonably warrant that intrusion.” 392 U.S. at 21. The officer must have a 

“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 

 

4

Three specific types of interaction occur between law enforcement and citizens: 

(1) consensual encounters; (2) investigatory detentions; and (3) arrests. State v. 

Woodard, 341 S.W.3d 404, 410-11 (Tex. Crim. App. 2011). The protections of the 

Fourth Amendment are not implicated by a consensual encounter. Id. at 411. The 

totality of circumstances surrounding the interaction determines whether a reasonable 

person in the defendant‟s shoes would feel free to ignore the request or terminate the 

interaction. Id. But the conduct of the officer is the most important factor in deciding 

whether the interaction was consensual or implicated the protections of the Fourth 

Amendment. Id.
6

that the unusual activity is related to crime.” Davis v. State, 947 S.W.2d 240, 244 (Tex.

Crim. App. 1997) (citing Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983)). 

“The second prong of Terry deals with the scope of the detention. . . . [A]n investigative 

detention, „like any other search, must be strictly circumscribed by the exigencies which 

justify its initiation.‟” Id. at 243 (quoting Terry, 392 U.S. at 25-26).

Erratic or unsafe driving may furnish a sufficient basis for a reasonable suspicion 

that the driver is intoxicated. Finley v. State, No. 06-10-00218-CR, 2011 Tex.App. 

LEXIS 9965, at *12-13 (Tex. App.—Texarkana Dec. 20, 2011, pet. ref‟d) (mem. op., not 

designated for publication) (holding trial court could have found “that weaving within a 

lane and making an unusually wide turn during the night hours would objectively lead a 

reasonable officer to conclude that [defendant] was not under the full control of his 

faculties due to intoxication”); State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.—Waco 

1998, pet. ref‟d) (opining that weaving in one‟s own lane can justify investigatory stop 

when weaving is erratic, unsafe, or tends to indicate intoxication); Fox v. State, 900 

S.W.2d 345, 347 (Tex. App.—Fort Worth 1995), pet. dism’d, improvidently granted, 930 

S.W.2d 607 (Tex. Crim. App. 1996) (holding officer‟s observation of speed of 

defendant‟s vehicle fluctuating between forty and fifty-five mph and weaving within 

defendant‟s lane provided sufficient specific facts creating reasonable suspicion that 

activity out of ordinary was occurring or had occurred). Reasonable suspicion justifying 

a traffic stop may arise even absent a violation of a traffic regulation. See State v. 

Alderete, 314 S.W.3d 469, 473 (Tex. App.—El Paso 2010, pet. ref‟d) (police officers 

trained to detect persons driving while intoxicated had reasonable suspicion to stop 

driver suspected of driving while intoxicated after observing driver continuously 
7

swerving within a lane for a distance of one-half mile, even though driver did not violate 

any traffic regulations); Cook v. State, 63 S.W.3d 924, 929 (Tex. App.—Houston [14th 

Dist.] 2002, pet. ref‟d) (holding while erratic driving may not have constituted a traffic 

violation, it may provide reasonable suspicion that driver was driving while intoxicated); 

McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App—Fort Worth 2001, pet. ref‟d) 

(explaining that State was not required to prove defendant violated traffic law even if 

officer‟s testimony failed to establish reasonable suspicion that defendant violated traffic 

law, it raised sufficient facts justifying stop based on reasonable suspicion of 

defendant‟s intoxication); Gajewski v. State, 944 S.W.2d 450, 453 (Tex. App.—Houston 

[14th Dist.] 1997, no pet.) (finding that although the defendant‟s driving may not have 

constituted a traffic violation, that did not negate a stop based on reasonable suspicion 

of defendant‟s intoxication). 

At the hearing, the trooper testified he had worked eight years for DPS and was 

then assigned to the drug section in the criminal investigation division. Concerning the 

occurrence in question, the trooper testified, and the video depicts, appellant‟s vehicle 

weaving within the lane of traffic. According to the trooper, appellant leaned over the 

steering wheel and drove below the posted speed limit. The date was July 4. The 

trooper factored the date in his assessment of the circumstances because in his 

experience intoxicated drivers are frequently seen on a holiday weekend. See List v. 

State, No. 04-00-00406-CR, 2001 Tex.App. LEXIS 127, at *3-4 (Tex. App.—San 

Antonio, Jan. 10, 2001, no pet.) (not designated for publication) (affirming conviction of 

defendant for driving while intoxicated and noting officer considered holiday season as a 

factor for his suspicion); cf. Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 
8

2010) (noting time of day is a relevant factor in determining reasonable suspicion). The 

trooper testified he suspected appellant might be driving while intoxicated. Based on 

the totality of the circumstances and viewing the evidence in the light most favorable to 

the trial court‟s determination, we hold that there was an objective basis for reasonable 

suspicion that appellant was driving while intoxicated. And reasonable suspicion to 

detain appellant existed at the inception of the trooper‟s contact with appellant in the 

restaurant parking lot. Accordingly, the trial court did not abuse its discretion in denying 

appellant‟s motion to suppress. Appellant‟s sole issue is overruled.

Conclusion

Having overruled appellant‟s issue, we affirm the judgment of the trial court.

James T. Campbell

 Justice

Do not publish.