### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN

NO. 03-00-00442-CR

Rene Adam e, Appellant

v. The State of Texas, Appellee

FROM THE

COUNTY CO URT AT LAW NO . 7 OF TRAVIS COUNTY, NO. 529, 167, HONORAB LE BRE NDA KENNEDY, JUDGE PRESIDING

A jury found appellant Rene Adame gu ilt y o f t he o ffen se o f dr iving wh ile in to xicated (DW I), fi rst off ense. Tex . Penal

Code Ann . § 49.04(a) (West Supp. 2001). The trial judge assess ed punishment at nine t y da ys inja il and a $2,000 f

in e, suspended

im positi on of the sen

tence exce

pt $500 of t he fine , an d p lac ed ap pe llan t o n c o mmu nit y s upe rv i si on f or two years. Rai sin

g two issues, app ellant conten

ds that (1) the

tria l courterredin

overruling h

is m ot ion to suppr ess evi

dence because t he ar re st ing o ffi

cer lacke d t he nec essa ry re aso nable su spicio n t o st o p h im an d ( 2) t he ev ide nc e is f actual l y i ns uf f i ci en t to support hi s con

vi cti on. We wi

l l af f i rm the c onv i cti on. Backgr ound On February 28, 1999, at about 10:40 p.m., Departmen t o f Pub li c Saf ety Of fi cer Do na ld Lu nd y wa s p at r o lling t he no r t h a r ea o f Lo o p 1 ( Mo Pa c) in hi s m arked DPS pat ro l car. The speed li mi t was 65 mi

le s per hour, traffi

c was l igh t, and Lundy

was travel

in g about 45 mi

le s per hour2

in the far ri ght lan e. Lundy noticed app ellant p ass him and s usp ect ed t hat app ellant w as t ra veling
m ore than 65 m

il es per hour. Lundy

began paci ng appel la nt and b el ie

ved appel la n t was t ra veling between 66 a nd 68 miles pe r ho ur . Lu ndy obs er ved t hat app ellant ha d difficulty neg ot iating a long curvi ng portion of the h

igh way . The speed l

im it al ong the curve was 65 m

il es per hour and Lun

dy observed appella nt speed, and wi

thout si gnal

in g, straddle the lane di

vi der between

t he ce nt er lane and t he in si de l ef t l an e f orab o ut a t en t h o f a mile
. Lu nd y fo llo we d a pp ella nt fo rab o ut o ne an d o ne - ha lf mi le s bef ore sign al in g hi m to stop. Wh

en Lun dy approached appel

la nt’s truck he notice d the dis tinct odor of al coholi c bev erage co ming from t he t ru ck. Lund y susp ect ed t hat app ellant ha d bee n dr inking and asked appel

la nt to step out of the truck. Lundy conducted the standard Horizontal Ga ze Ny stagmus

(HGN) t est and t wo ot her field sobr iety t est s. B ase d o n app ellant’ s ac t ions d ur ingthese tests, L und y be l i ev ed ap

pel l an t was i ntoxi cated a nd a rrested hi m f or DWI
. Appe llantf

i l ed a p re trial moti on to suppress, contendi

ng that the in

iti al stop wa s n

ot la wful and, theref

ore, all evi dence of his int oxica t ion g ained a s a r esu lt o f the stop should be e xcl uded. The tria l court den

i ed ap pel l an t’s m otion to suppre ss. At t rial, t o p ro ve into xicat ion t he St at e pr ese nt ed L undy’s t est imony and a vi deotape Lundy made d uri ng a ppel l an t’s road side detenti

on an d tri p to the pol

i ce s tation

i n the patrol

car. While Lundy

testifi ed about most of the ci

rcumstances that are refl ected in the video t ape , t he vi deotape does not refle ct all of his observations. Lundy testifi ed abo ut obs er vingapp ellant s pee ding slig ht ly alo ng a c ur ving po r t io n o f t he hig hw ay a nd st r ad dlin g a lan e d ivid er fo rab o ut a t en t h o f a mile be f ore he turne d on the vi deotape m ach i ne . Addi tional ly , Lundy t est ifi ed t hat aft er he and app ellant1 Appel la nt decl in ed to give a b

reath sam ple
. 3 reached the police st at io n, ap pe llant t o ld h im th at h e d i d n ot thi n k th at h e w oul d p as s th e b re ath test. 1 The j ury f ound a ppel l an t gui l ty of the of f en se of DW I.
Discussion Reasonable Suspicion to Stop

Appel la nt fi rst contends that t he trial

cou rt er red i n ov err ul i ng hi s p retr i al moti on to suppress beca use Lund y did no t have t he requis ite reasonab le suspici on when

h e s topp ed

appe l l an t. S pe cif ica lly, ap pe llant co nt en ds t ha t Lu nd y sho uld no t ha ve st o pp ed him b ec au se Lu n dy di d n ot n ote appell ant’s exact speed and also appellant was tr avel in g withi n DPS speed to lerances. The appropriate standar d of r eview for a suppr ession r uling is a bifurcated r eview, giving almost total deference to the tr ial court’s findings of fact, but conducting a de novo review of the court’s application of law to those f

acts. State v. Ross , 32 S. W. 3d 853, 856 (Tex. Crim. App. 2000) (citing Carmo uche v. State , 10 S
. W. 3d 323 , 327 (Tex. Crim. App. 2000) ); Guzman
v. State , 955 S
. W. 2d 85, 88-89 (Tex. Crim. App. 1999)
.

Police officers may s

top and briefly

detain persons s

uspec ted of criminal a

ctivity
onless information than is constitutionally r equired for probable cause to arrest. Terryv. Ohio , 392 U. S. 1, 22-26(1968 ); Garza v. State , 771 S
. W. 2d 549 , 558 (Tex. Crim. App. 1989)
. To just ify the investigative detention, the individual officer must ha ve a reaso nable suspicion that

“ some ac tivity ou t o f t he ord in ary is occurring or had occurr ed, some suggestion to connect the detained person with the unusual activity, and some ind ic ation that the activity is related to a4

crime. ” Te rry , 3 9 2 U. S. at 21-22 ; Johnson v. State , 658 S. W. 2d 623, 626 (Tex. Cri m. App. 1983) ; Harri

s v. State , 913 S. W. 2d 706, 708 (Tex. App.

— Texarkana 1995, no pet. ). The officer must have s

pecific a rti culable fact s which, in light of his experience and personal knowledge, together with

infer ences fr om those facts, would reasonably warr ant the intrusion on the fr eedom of the person detained for investigation. Terry , 392 U. S. at 30; Woods v. State , 956 S. W. 2d 33, 38 (Tex. Crim. App. 1997) ; Comer v. State , 7 5 4 S. W. 2d 656 , 657 (Tex. Crim. App. 1986) ; Johnson , 658 S. W. 2d at 626.

The reasonable

nes s of a temporary stop turns on the “ totality of the cir cumstances” ineach case. Illinois v. Gates , 462 U. S. 213, 230-3 1 (198 3); Shaffer v. State , 562 S. W. 2d 853, 855 (Tex. Cri m. App. 1978) ; Davis v

. State , 794 S. W. 2d 123, 125 (Tex. App.

— Austin 1 990, pet. ref’d). Reasonable sus

picion, like probable cause, is dependen t upon both the content of the information possesse d by the police and its degree of reliability. A labama v. W hite , 496 U. S. 325 , 3 30 (1990). “ B oth factors— quantity and quality—

are considered in the totality of t he circumstanc es—

the whole picture .
. . mu st

be ta ken into acc ou

nt wh en ev al ua ting wh et her th ere is reasonable suspicion. ” Id. (citing United States v. Cortez , 449 U. S. 411, 417 (1 981)); see also Carmouche , 10 S. W. 3d at 328-29; Reyno lds v. State , 962 S. W. 2d 307, 311 (Tex. App.

— Houston [14th Dis t. ] 1998 , pet. ref’d). Appellant argues that the stop was unlawful because Lundy could not testify about the exact speed appellant was traveling. This argument was add ressed s pecifically in Dillard , when the c ourt sta

ted, “ we di sag

ree with appe llant ’s contention that unless [the officer] knew the exact speed which the automobile was traveling, no violation occurr ed. ” Dillard v

. State , 5505

S. W. 2d 45, 53 (Tex. Cri m. App. 1977). F urther , appellant argues that because Lundy believed that appellant was traveling within DP S speed tolerances the stop wa s unlawful. When determining wh et

her a s top w as ob je ct iv el y re as on ab le , la

w e nf orc em en t p racti ce s a

nd po li ci es are irrelevant.
As long as a

n actual violation o ccurs, law enforceme nt officials

are free to enfor ce the laws and de t ain a person for that violation, regar dless of whatever the usual practices or sta ndards of the local law enforcement agency ar e regar dless of the office r’s subjective reasons for the detention. Thus, the appropriate limitation of anofficer’ s discretion, under the Fourth Amendment, is the existence of a law and the actual commission of the offense.
Garcia v. State , 827 S
. W. 2d 937 , 944 (Tex. Crim. App. 1992)
. If an officer has a r easonable basis for suspecting that a person has committed a traffic offense, the officer may initiate a traffic stop. Whren v. United States , 517 U. S. 806, 810 (1996 ); McVicker

s v. State , 874 S. W. 2d 662, 664 (Tex. Cri m. App. 1993). An operator may not drive at a speed gr eater than is r easo nable and prudent under the existing circumstances. Tex. Transp. Code A

nn. § 545.351 (West

Sup p. 2001)
. “ A spee d in exce ss of the establ ished li

mits is prima facie evidence that the s peed is not reasona

ble and pruden

t and that

the spe ed is unla wful. ” Tex. Transp. Code A nn. § 545.352 (West

Sup p. 2001)
. F inally, appellant argues thathis lane straddling was similar to the defendant’s lane straddling in Hernandez v. State , 983 S. W. 2d 867, 870 (Tex. App.

— Austin 1998, no pet. ). We disagree. In Hernandez , the off icer o bserved the defend ant br iefly dr ift acr oss the lane marker2 Appellant co nced es t hat Lund y’s te st imony alo ne wa s le ga ll y sufficient t o s ust ain the conviction. 6 and the drifting was the only circumstance known to the office r when he stop

ped the de fendant. The brief dr ift across the lane divider alone was held to be insufficient to warr ant the stop.

Here, the circumstances observed by Lundy included pacing appellant above the speed limit f or ab out one and o ne-half miles. On this basis alone, Lundy had a reasonable and articulable

basis for believing that appellant committed a traffic violation, speeding. Dillard , 550 S. W. 2d at 53. Additi onally, L undy o bserved app ella

nt st raddling lan es for about a tenth of a mile. B ased on the totality of the circumstances, we hold that Lundy had a reasonable suspicion of unlawful a

ctivity, a traffic violation, and lawful ly stoppe d appella nt. Appellan

t’s first iss

ue is
overr uled.
F actual Suff

iciency Appellant also con tends that the evidence i s factua lly insuffic ient to s

ustain h is
c onviction because the evidence of appe llant’s intoxication was “ so weak as to undermin e confidenc e in the ju

ry’s verdict. ” 2 We review all of the evidence for factual suffic iency in a neutral light. Johnson
v. State , 23 S. W. 3d

1, 10 (Tex. Cri m. App. 2000)

. If a party attacks the factual sufficiency of
anadver se finding on an issue for which he did not have the burden of pr oof, he must show that th ere is in suff ic ient evid ence of th e a dv ers e f in ding . In

reviewing

su ch a cha ll en ge , th e c ou

rt of appeals must first consider, weigh and examine all of the evide nc e that s upports and that is
co nt rary to the jury’s deter mination. Id. Having done so, the appellate court should set aside the7

verdict only if the evidence supporting the adverse finding stand ing alone is so weak as to be clearly wrong and ma

nifestly u njust. Id. To prove intoxication at tr ial, the State offered Lundy’s testimony and the videotape made du ring a pp el la nt ’sroa ds id e deten

ti on and ri de in th e p at rol ca r t o the poli ce station. Appellant argues that “what makes the jury’s verdict clea

rly wrong and unju st . . . is wha t is
reve aled, or not

rev ea le d, on t he vi de ot ap e.” Appe ll an

t c on tend s t ha t b ec au se ne it her h is lan e straddling nor his state

ment to Lundy

that he thought he would fail a breath te st we re recor ded on the videotap e, the evide nce is fa ctually in sufficien

t to support the jur y’s finding that he was intoxicated. Sim

ply be caus e app ella

nt’slane straddling and statement that he thought he would fail a breat h test did no t appear in the vid eotape did n ot r ender Lundy’ s testimony r egard ing these facts incredible or necessarily undermine confidence in the jur y’s verdict. If we did reach the conclusion

urged by appel lant, we would be intruding upon the jury’s fact-finding

role as the s ole judge of the weightand credibility to be given the evidence presented. Moreover , the videotape
was not clearly exculpatory evidence as appellant urges. It shows a ppel lant’ s impaired balance at a couple of poin ts: (1) when appellant leaned on his truck for support while Lundy was instructing him o n the walk-and-turn test; and (2) when appellant momentarily lost his balance when performing the walk-an

d-turn test. Additiona

lly, it shows appellant moving

his head during the HGN test.8 The proof of i ntoxication is not so obviously weak

as to und ermine confiden

ce in the jury’s ver dict. We hold that the evidence is factually suffici ent to suppo rt the conviction. Appellant’s second issue

is overr uled.
Conclusion We affirm the conviction.

__________________________________________ Marilyn Aboussie, Chief Justice B efore Chief

Justice Abouss ie, Justices Yeake l and Patter son Affirm ed F iled: April 12, 2001 Do N ot Pu blish