* John T. Boyd, Chi ef Ju stice (Ret.), Sevent h Court of Appeals, s itting by

assignment

. NO. 07-01-0475 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E AUGUST 29 , 2002

______________________________ STEVEN F. MARTIN, AP PELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE COUNT Y COURT AT LAW NO. ONE OF L UBBOCK COUNTY;

NO. 2000-468691; HON ORABLERUSTY LA DD, JUDG E

_______________________________ Before REAVIS and JOHNSON, JJ, and BOYD, SJ. 1 Appellant Steven F. Martin chal lenges h i s conviction for driving while intoxicated after his plea of guilty and the res ultin g se nte nceof 1 20 d ayscon fine m ent in the Lubbock County Jail by contending the trial court erred in overruling his motion to s uppr esshis2

tra ffic stop and arrest. Disagreeing that reversal is required, we affirmthe judgm ent of the trial court. Ap pellant argues that because t here was nowarrant for himat the tim e he was stopped, the State m ust show the reasonableness of the traf fic stop. How ever, he contends, Officer Brent Collins wasunable to point to specific articulable facts that jus tified the sto p fo r an y all ege d tr aff icviolation. In support of that proposition, appellant asserts thatthe officer was

confused as to his and appellant’s respective locations on t he n ight in question and it was im possible for appellant to have madea right turn as described by the officer. Further, he r easons, because the officer’s tes tim ony wasreplete with inconsistencies, Collins’s credibil ity is called into question.
In reviewing a m otion to suppress, w e m ust give almost

total deference to a trial court’s determ inat ion o f fa cts , es pec ially w hen the y ar

e ba sed on a n ev alu ati on of credibili tyan d d emea no r, whi le we r ev ie w de novo thecou rt’ s ap pli cation of th e law to those facts unless that reso lution tur ns on an e valuation of credibility and dem eanor. Guz man v. Stat

e , 955 S.W.2d 85, 88-89 (Tex.Crim .App. 1997). Once a defendant establishes thata search or seizure occurred w ithout a warrant, th e burden is on the State to prove the reason ableness of the search or seizure. Russell v. State , 717 S.W.2d 7, 9- 10 (Tex.Crim .App. 1986). A seizure is reasonable without a w arrant when th e stop is brief and limited to confirm ing or dispelli ng the of ficer’s re asonable belief that a crime has occurred or is about to occur. Terry v. O hio , 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 88 93

(19 68). The officer must be able to point to “sp ecifi c and articul able facts, which take n together with rational inferences from those facts,” support the suspicion that the person has, or soon w ill be, engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 3 8 (Tex.Crim .App. 1997). This rule also applies to traffic stops. U. S. v. Bri gnoni-Ponce, 422 U.S. 873, 88 0-81, 95S.Ct . 2574, 45 L.E d.2d 607(1975).
Atthe suppression hearing, Officer Collins was asked to explain w hy appellant was stopped:
A. Mr. M artin was stopped because he m ade an extrem ely wide and fas t right-hand turn onto the 100 block of West Geneva from the900 block of South Pine Street. He then m ade an extrem ely fast and w ide turn to the left onto the 800 block of S outh Eighth Street. Q. And w

as it at that tim e that you stopped t he Defendant? A. Ye s, ma’ am. Q. As far as t he Defendant’s ac tions thatyou’ve spoken of the w ay he wa s

- - was - - the way he was d riving, let me ask you if you were tohave ticketed

- - given him a citation for his driving behavior , what tickets would you have gi ve n h i m? A. I issued h i m a citation for mak ing a wide right-hand turn, for driving on the wrong s ide of the road, for failure to control speed. Q. And did you gi ve Mr. Martin any of those ci tations? A. No, m a’am , I did not. Q. And w hy did you not? A. I arrested himfor driving while intoxicated.4

Q. An d is it within your discretion to decide w hether or not to give a - - to give a ticket as well as arrest him for DWI? A. Ye s, Ma ’a m. Q. Let m e just ask you, j ust to clarify, would you say that the D efendant was driving at a speed that was greater than reasonable? A. Ye s, ma’ am. Q. Given the ci rcumstances? A. Ye s, ma’ am. Q. And w hat w

as your fear, wha t was - - what - - w hat were you thinking wh en yo u s to pp ed hi m? A. I thought he w

as running from som eone as fast ashe was going. I m ean, he was g oing considerably fast, and m aking unusua lly wide a nd sharpfast turns and it was j ust - - I thought he w as running from som ebodywhen I first spotted him

. Q. How would you desc ribe his driving? A. Reckless. Appellant argues thatthe first alleged violation was impossible because S outh Pine Street in Slaton does not intersect w ith W est Geneva St reet. Thus, appellant could not have ma de the alleged right hand turn from the 900 block of Sout h Pine Street tothe 100 block of West Geneva as he testified. Further, he asserts, becausean officer “em ployed in a sm all town for three years w ould have gr eat familiari ty with street names and block numbe rs,” the officer’s confusion raises “serious questions of credibility as to the officer’s testim ony.”5

Even if we believe that

the officer actually saw t he vehicle turn as he claims to have done, appellant alleges that the State has s till fai led to meet its burden o f proof because the street did not have divider lines, the officer cou ld not sp ecifi cally sta te how close appellant cam e to thecurb on his right turn, it was 11:30p.m . and thus dark at t he time the officer observed the vehicle, the officer observed the vehicle fromthree blocks away , he had no radar

and could only estimate that appellant was traveling 40 m.p.h. at the time of the turn, and it is unlikely that a pickup truck could m ake a 90 degree turn trav eling 40 m.p .h. Therefore, he reasons, the officer failed to state reasons from which an ass umpt ion
can be m ade that section 545.101 of the Transportation Code, w hich requires a right hand turn be m ade as close as practical to the right hand curb or the ed ge of the roadway, had been violated.
The State is not required to pro ve t hat a de fen dan t ac

tua llyviol ate d a t raf

fic law in order to jus tify a s top , bu t on ly ne ed e licit testimon y that the officer knew sufficient facts to reasonably suspect he had violated a tr affi c l aw. McQuarters v. St ate , 58 S.W.3d 250, 255 (Tex.App. --Fort W orth 2001, pet. ref’d); Texas Dept . of Publi c Saf ety v . Fisher, 56 S.W.3d 159, 163 ( Tex.App.--Da llas 2001, no pet.). The determ ination is based on the totality of the circumstances, and ther e is n o require ment that a particular statute be violated to give rise to reasonable suspicion

. T exas Dept. of Public Safety v. Bell, 11 S.W.3d 282, 284 (Tex.A pp.--San Anto nio 1999 , no pet.). In this instance, one of the statutes in question provides that to “m ake a right turn at a n inters ect ion, an o per ato r sh all6

make both the approach and theturn asclosely aspractica ble to theright-hand curb or edge of the roadw

ay.” Tex. Trans p. Code Ann. § 545.101(a) (Vernon 1999).
In support of appellant’s proposition that sufficient facts did not exi st for Officer Collins to have stopped him , he relies on our prior decision in Richardson v. Sta te , 39 S.W.3d 634 (Tex.A pp.--Am arillo 2000, no pet.). In that case, w e no ted tha t th e of fice r did notgive consistent testim ony as to w hy he stopped the defendant. On di rect exam ination, he stated that he stopped the defendant for impeding traffic and, on cross-examination, he stated that he believed the driver was intoxicated. Id. at 638. W e found the evi dence insufficient to s upp ort

a re aso nab le su spic ion t hat thedef end ant w as im ped in g traffi c because there wasno m inimum speed established for that particular highway, there w as little or no traffic on the road for the defendant to impede and what traf fic existed had no tro ublepassing. Id. at 638-39. Further, there was ev iden ce that the defendant was tra velin g only 10 m.p.h. under the speed li mit, which the officer stated would not have posed a safety problem

. Id. at639. We also found that m erely traveling under the speed limit did not justify an investigatory stop for driving while intoxicated. Id. at 640.
In c ontrast, Officer Collins was consistent in his testim ony as to the reasons he stopped appellant. Appellant was driving over the speed lim it and madea wide right turn. The officer testified that he cited appellant for a wide right turn, for driving on the wrong side of t he r

oad , an d fo r fa ilureto cont rol h is spe ed, alth oug h hedid n ot a ctu ally give the citations to a ppe llant . E ven tho ugh Off icer Col lins did not have a radar gun, he stated that7

he was driving the 30 m. p.h. speed limit and that appellant was traveling at a faster s peed, which he estimate d to be 40 m .p.h. He also stated that the right hand turn m ad e b y appellant was w ide enough that appellant was close to the left hand curb. We beli eve the officer had articul able facts fro m w hich he coul d reasonabl y belie ve thata traffic violation had occurred.
Fur the r, o n cr

oss -ex am inat io n, the officer testified that appellant was driving on Ninth Street headed north, instead of on Pine Street as he had previously testified when he first observed him . The fact that it m ight have been dark, Collins m ay have observed the turn fro m three bloc ks aw ay and whether apickup truck could negotiate a turn at 40 m.p .h. are m atters that affect the credi bili ty of the testimony. Any inconsistencies in the testimony

as to the locati on of the vehicl es, the street nam es and any questions as to the officer’s credibility are t o be resolved by the trial court, and w e m ust defer to its consideration of those issues, w hich the court obviously found in favor of the of ficer. Appellant also argue s that the seco nd turn m ade from W est Geneva onto S outh Eighth Street failed to m eet the applicable standard of review. A lthough O fficer Collins stated that the turn w

as wide, he adm itted thatit was not an il le ga l t ur n. Nev er th el es s, we have alre ady

fou nd h e was j ust ified in s top ping app ellan t ba sed on a n ille gal ri ght turn onto W est Geneva St reet. Finding no abuse of discretion on the part of the trial court

in denying the m otion to suppress, w e affirm thejudgm ent of the trial court.8 John T. Boyd Senior Justi ce Do not publish.