### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00126-CR

Steven Scott Rose, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY

NO. 594018, HONORABLE JAN BRELAND, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant appeals his conviction for the misdemeanor offense of operating a motor

vehicle while intoxicated. Appellant waived trial by jury and entered a plea of nolo contendere

before the trial court. The trial court assessed punishment at confinement in the county jail for 180

days and a fine of $2,000. The trial court suspended the imposition of the sentence and placed

appellant on community supervision for eighteen months subject to certain conditions.

Point of Error

In a single point of error, appellant contends that the “trial court erred in overruling

appellant’s motion to suppress for the reason that the arresting officer was not justified in stopping

appellant’s car.”1 See Tex. R. App. P. 33.1(a)(1)(A)(B)(2)(A)(B).

2 Preservation of Error

At the outset, we ar e confronted with the State’s argument that appellant failed to

preserve error because there was no ruling on the pretrial suppression motion. The State urges that

at the conclusion of the suppression hearing there was no oral or written ruling on the motion to

suppress evidence. In the record is a certification by the trial court that the instant case was “a pleabargain case, but matters were raised by written motion fil ed and ruled on before trial and not

withdrawn or waived and the defendant has the right of appeal.” S ee Tex. R. App. P. 25.2(d). The

State takes the position that the certification by the trial court fails to spec ify that the trial court

overruled the pretrial motion to suppress evidence and without an adverse ruling under Rule 33.1 1

on the suppression motion, any error was waived. P owell v. State

, 897 S.W.2d 307, 310 (Tex. Crim.

App. 1994).

At the conclusion of the pretrial h earing on the motion to suppress, the record reflects:

THE COURT: Mr. Howeth, where do you want to go from here?

MR. HOWETH

[defense counsel]: I guess I want to see the videos. We tried to get the video and

somehow it didn’t show up. Now we know it was there. I will

probably do a little bit better if I can get that up, so whatever

the Court says. I suppose this can go to a jury trial if it gets to

it. I think if I can see the video and the State can see the video,

we can agree or disagree or something and then we can narrow

it down a little bit so we don’t have as much court time.

MR. LASTOVICA

[prosecutor]: I’m confident that we’ll disagree, Your Honor.3

MR. HOWETH: I could be more specific about what we disagree on once I’ve

seen the video, Your Honor.

THE COURT: Okay. Why don’t we put it on the jury docket and then stay

in touch with Mr. Lastovica. If he gives you a hard time

about letting you watch that video, you let me know. I’ll

discipline him appropriately.

MR. HOWETH: I think that’s good. I’m going to go along with the game plan

altogether.

MR. LASTOVICA: I heard every word, Your H onor. Especially what you said,

Your Honor.

THE COURT: Very good.

No oral or written order followed the hearing, but it appears the case was placed on

the jury docket. There was no court reporter’s record made of appellant’s subsequent plea of nolo

contendere before the trial court, which might have reflected the earlier ruling on the suppression

motion. At the time of the notice of appeal, the trial court certified that a ruling had been made on

a pretrial motion, a certification not likely to have been made if the ruling had been to grant the

motion. Under the totality of the circumstances, we conclude that the record supports an implicit

adverse ruling on the suppression motion. S ee Tex. R. App. P. 33.1(a)(2)(A). We reject the State’s

waiver argument.

Facts

The only evidence before us is the one-witness suppression hearing. C f. Rachal v.

State

, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). City of Lakeway Police Officer Gabriel

Zambrano testified that on August 13, 2001, he was informed by the police dispatcher that a4

telephone call had been received from “a driver on the roadway” that there was a black Ford pickup

truck with a headache rack being driven recklessly “possibly a drunken driver, swerving from side

to side.” The caller was an unidentified tipster. Officer Zambrano was nearby on Highway 620, and

the vehicle in question was traveling in his direction. Zambrano spotted the black Ford pickup truck

fitting the description given. At first, there were two cars between the officer’s marked patrol

vehicle and the pickup truck. Zambrano saw the pickup truck being driven in an erratic manner

swerving from side to side. The pickup was in the right lane of two lanes of traffic flowing in the

same direction. The oncoming traffic was in two lanes going in the opposite direction on the fourlane highway.

When Zambrano got his vehicle directly behind the pickup truck, he received another

message from the dispatcher that the caller, who had remained in communication, had stated that the

officer was now behind the truck reported. At this point, Zambrano turned on his mobile video.

Thereafter, the driver of the pickup veered left out of his traffic lane six times and veered right over

the “fog line” onto the shoulder five times. On one occasion, the truck left its traffic lane completely

and went over onto the improved shoulder. Officer Zambrano turned on his vehicle’s overhead

lights and his siren. Officer Ed Lindell, also in a marked patrol vehicle, came upon the left side of

the pickup truck with over head lights flashing. The pickup truck traveled a mile or so before the

officers were able to stop the truck. Zambrano identified appellant as the driver of the truck.

Appellant’s counsel stated for the record that at the time appellant was not contesting the probable

cause for the arrest “for DWI.”2 The appropriate standard of review for a suppression ruling is a bifurcated review, giving

almo st total deference to the trial court’s findings of fact, but conducting a d e novo review of the

court’s application of the law to those facts. State v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App.

2000); Carmouche v. State

, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); G uzman v. State

, 955

S.W.2d 85, 88-89 (Tex. Crim. App. 1997).

5

Zambrano testified that the stop was made at 5:51 p.m. during the rush-hour traffic

on Highway 620, which was a congested or heavily traveled traffic artery. He was certain there were

other vehicles adjacent to the pickup truck at the time in question. Zambrano stated that appellant’s

manner of driving posed a danger to himself and others. Appellant’s counsel elicited the fact that

there had been no accident or collision that the officer observed.

Discussion

Appellant argues in his single point of error that the trial court erred in overruling his

motion to suppress evidence 2 because the arresting officer was not justified in stopping appellant’s

vehicle as there was no reasonable suspicion for appellant’s detention. Specifically, appellant

contends that the driving behavior involved did not affect the safety of other motorists and as such,

did not violate any traffic law.

While a police officer must have probable cause for a full custodial arrest, a mere stop

of an individual for the purposes of i nvestigation does not require such substantial justification.

Terry v. Ohio

, 392 U.S. 1, 22-26 (1968); Garza v. State

, 771 S.W.2d 549, 558 (Tex. Crim. App.

1989); State v. Fudge , 42 S.W.3d 226, 229 (Tex. App.—Austin 2001, no pet.). Law enforcement6

officers may stop and briefly detain persons suspected of criminal activity if the circumstances upon

which the officers rely objectively support a reasonable suspicion that the person detained actually

is, has been, or soon will be engaged in criminal activity. D avis v. State

, 947 S.W.2d 240, 244 (Tex.

Crim. App. 1997); McQuarters v. State

, 58 S.W.3d 250, 255 (Tex. App.—Fort Worth 20 01, pet.

ref’d).

“Reasonable suspicion” exists if the officer has specific articulable facts that,

when combined with rational inferences from those fa cts, would lead him to

reasonably suspect that a particular pe r son has engaged or is (or soon will be)

engaging in criminal activity. This standard is an objective one: there need only be

an objective basis for the stop; the subjective intent of the officer conducting the stop

is irrelevant. The reasonable suspicion determination is made by considering the

totality of the circumstances.

Garcia v. State , 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (footnotes omitted).

The reasonableness of a temporary stop turns on the “totality of the circumstances”

in each case. I

llinois v. Gates

, 662 U.S. 213, 230- 31 (1983); Fudge , 42 S.W.3d at 229; D avis v.

State

, 794 S.W.2d 123, 125 (Tex. App.—Austin 1990, pet. ref’d). Reasonable suspicion, like the

greater requirement of probable cause, is dependent upon both the content of the information

possessed by the police and its degree of reliability. A labama v. White , 496 U.S. 325, 330 (1990).

“Both factors—quantity and quality—are considered in the totality of the circumstances—the whole

picture

. . . must be taken into account when evaluating whether there is reasonable suspicion.” I d .;

see also Carmouche v. State , 10 S.W.3d 323, 328-29 (Tex. Crim. App. 2000).

A tip by an unnamed informant of undisclosed reliability standing alone rarely will

establish the requisite level of reasonable suspicion necessary to justify an investigative detention3 Section 545.060(a) provides:

(a) An operator on a roadway divided into two or more clearly marked lanes for

traffic:

(1) shall drive as nearly as practical entirely within a single lane; and

(2) may not move from the lane unless that movement can be made safely.

Tex. Transp. Code Ann. § 545.060(a) (West 1999).

7 or stop. F loreda v. J. L.

, 529 U.S. 266, 269 (2000). In the instant case, unlike F ud ge , Officer

Zambrano did not rely alone upon a tip by an unnamed informant. Acting upon the tip, Zambrano

independently observed acts upon which to lawfully base the stop, all of which constituted factors

in assaying the totality of the circumstances. Not only was the tipster’s information corroborated to

the extent the temporary detention was justified on that basis alone, but Officer Zambrano personally

observed conduct that caused him to reasonably suspect that a crime had been, was being, or was

about to be committed. S ee Sailo v. State

, 910 S.W.2d 184, 188-89 (Tex. App.—Fort Worth 1995,

pet. ref’d).

Appellant argues that the stop was not justified because the evidence failed to show

that he violated a traffic law. Appellant claims that Zambrano’s testimony showed the sole basis for

the stop was appellant’s failure to maintain a single marked lane. Tex. Transp. Code Ann.

§ 545.060(a) (West 1999), and that none of his actions on the road with his pickup truck were unsafe

as required by the statute. 34 (a) An opera tor may drive on an improved shoulder to the right of the main traveled

portion of a roadway if that operation is necessary and may be done safely, but only:

(1) to stop, stand, or park;

(2) to accelerate before entering the main traveled lane of traffic;

(3) to decelerate before making a right turn;

(4) to pass another vehicle that is slowing or stopped on the main traveled

portion of the highway, disabled, or preparing to make a left turn;

(5) to allow another vehicle traveling faster to pass;

(6) as permitted or required by an official traffic-control device; or

(7) to avoid a collision.

Id . § 545.058(a) (West 1999).

8 The State contends that not only section 545.060(a) was in volved, but section

545.058(a) of the Transportation Code (driving on improved shoulder) 4 must be considered in the

totality of the circumstances.

Th ere is no requirement that a particular statute be violated in order to give rise to

reasonable suspicion. G ajewski v. State

, 944 S.W.2d 450, 452 ( Tex. App.—Houston [14th Dist.]

1997, no pet.). If an officer has a reasonable basis for suspecting that a person has committed a

traffic offense, the officer may legally initiate a traffic stop. McVickers v. State

, 874 S.W.2d 662,

664 (Tex. Crim. App. 1993); Texas Dept. of Public Safety v. Chang , 994 S.W.2d 876, 877 (Tex.

App.—Austin 1999, no pet.). The State is not required to show a traffic offense was actually

committed but only that the officer reasonably believed a violation was in progress. T exas Dept. of9

Public Safety v. Fisher , 56 S.W.3d 159, 163 (Tex. App.—Dallas 2001, no pet.); Valencia v. State

,

820 S.W.2d 397, 400 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d); see also McQuarters

, 58

S.W.3d at 255.

The State only needed to elicit testimony that Officer Zambrano knew sufficient facts

to reasonably suspect that appellant had violated a traffic law. M cQuarters

, 58 S.W.3d at 255 (citing

Garcia

, 43 S.W.3d at 530). Assuming Officer Zambrano’s testimony may not have established a

reasonable suspicion that appellant violated a traffic law, it did raise sufficient facts to justify a stop

based on reasonable suspicion that appellant was intoxicated while driving. M cQuarters

, 58 S.W.3d

at 255; Gajewski

, 944 S.W.2d at 453. The officer was justified in stopping appellant. The trial court

did not abuse its discretion in overruli ng the pretrial suppression motion. The point of error is

overruled.

The judgment is affirmed.

__________________________________________

John F. Onion, Jr., Justice

Before Chief Justice Law, Justices Kidd and Onion *

Affirmed

Filed: August 14, 2003

Do Not Publish

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Crim inal Appeals, sitting by

assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).