1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-14-00010-CR

____________________

STUART WAYNE CRUMPTON, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the County Court at Law

Polk County, Texas

Trial Cause No. 2013-0204 

________________________________________________________ _____________

MEMORANDUM OPINION 

Stuart Wayne Crumpton pleaded guilty to possession of a dangerous drug, a 

misdemeanor. See Tex. Health & Safety Code Ann. § 483.001(2) (West Supp. 

2014), § 483.041 (West 2010). The trial court found the evidence sufficient to find 

Crumpton guilty, but deferred adjudication of guilt, and placed him on deferred 

adjudication community supervision for eight months. In two appellate issues, 

Crumpton argues that the trial court erred (1) in denying his motion to suppress 

because no evidence supports the trial court’s finding that the officer who initiated 
2

the traffic stop had reasonable suspicion to believe that Crumpton had violated the 

law, and (2) in assessing attorney’s fees. We overrule issue one, sustain issue two, 

and affirm the judgment as modified.

MOTION TO SUPPRESS

Crumpton filed a motion to suppress challenging the legality of the traffic 

stop and arguing that “[n]either the facts in the [probable cause] affidavit nor the 

facts in the offense report indicate that [Crumpton]’s driving was unsafe[.]”

Crumpton also asserts in his motion that his consent to search his vehicle “does not 

vitiate the unreasonable seizure, which requires the suppression of all evidence 

found as a result[]” thereof.

Officer Christopher Lima with the Polk County Sheriff’s Office testified at 

the suppression hearing. At approximately 2:30 p.m. one afternoon in March 2013, 

Lima was on patrol and observed Crumpton’s vehicle, with its “left blinker” on,

swerve away from oncoming traffic “[a]nd back into the lane” while driving south

on Highway 146, a two-lane highway. Lima then followed him for approximately 

two miles. According to Lima, over those two miles Crumpton partially “crossed 

over the lane of traffic and came back into his lane on more than one occasion[,]” 

and had his left turn signal on for “the whole two miles[,]” and never made a turn. 

Lima clarified at the suppression hearing that although his offense report states that 
3

Crumpton drove “[o]ut of the lane of travel and off the road, and back into the 

southbound lane of travel” (which Lima admitted could be construed as describing 

Crumpton swerving out of the lane of travel only once), Crumpton’s “left tire 

crossed the yellow line” in the middle of the highway more than once and “he 

swerved to the left and right.”

Officer Lima activated his “emergency equipment” and initiated a traffic 

stop based on what he believed was a traffic violation, Crumpton’s failure to 

maintain a single lane.1 Officer Lima testified that when he decided to stop 

Crumpton, Lima suspected that Crumpton was possibly driving while intoxicated 

“[b]ased on the coming in and out of the lane of travel, back into the lane of travel, 

inattentive to the blinker on, things of that nature[,]” and Lima “wanted to make 

sure [Crumpton] was okay to drive.” Lima testified that Crumpton told Lima that 

Crumpton’s tire was causing his vehicle to veer right, and he sometimes forgets to 

turn his blinker off. Based on his training and experience, Lima did not believe 

Crumpton’s explanation.

 1

Section 545.060 of the Texas Transportation Code 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 2011).
4

Officer Lima observed that Crumpton’s eyes were “extremely bloodshot”

and that, when asked for his driver’s license, Crumpton’s hand was shaking. 

Officer Lima asked Crumpton to get out of his vehicle “[f]or officer safety 

reasons[,] . . . to speak with him some more in reference to . . . his mannerism and 

his walk and whatnot, to make sure he was not too intoxicated to drive.” Lima did 

not smell alcohol on Crumpton’s breath, and Crumpton’s speech was not slurred 

and he did not stumble when he walked. Lima did not administer any field sobriety 

tests. 

Crumpton voluntarily consented to the search of his person and his vehicle. 

The search of the vehicle lasted approximately nine minutes. Officer Lima 

retrieved six prescription pills from the center console of the vehicle and a 

substance that appeared to be marijuana. Officer Lima testified that he read 

Crumpton his Miranda rights and then asked him if the marijuana and prescription 

pills belonged to him. Crumpton admitted the marijuana belonged to him. He

explained that the prescription pills were not his and that he had been given them, 

and he admitted that he did not have a prescription for the pills. Lima arrested

Crumpton and charged him with possession of a dangerous drug but “held the 

possession of marijuana and forwarded it to the [District Attorney’s] office for 

further prosecution if need be[.]” 
5

The trial court denied Crumpton’s motion to suppress and made findings of 

fact and conclusions of law. The trial court’s findings of fact pertinent to the issues 

on appeal are that Lima observed the vehicle “veer from a single lane of traffic[,]”;

that Lima “observed the vehicle for a distance of approximately 2 miles during 

which time the vehicle swerved or veered outside its lane of traffic multiple times 

and the turn signal of the vehicle remained on” but the vehicle made no turn; and 

that after Lima initiated the stop, Crumpton exited the vehicle and “did not exhibit 

indications of impairment or alcohol or drug use.” The trial court concluded that 

Lima had reasonable suspicion to believe Crumpton had violated the law, the stop 

and period of detention were reasonable, Crumpton gave consent to search his 

vehicle, the marijuana and drugs located during the search should not be 

suppressed, and Crumpton’s arrest was a valid warrantless arrest. 

In issue one, Crumpton asserts that “[t]he record is devoid of evidence to 

support any finding that Detective Lima had reasonable suspicion to detain Mr. 

Crumpton[,]” and therefore, “all physical evidence and statements obtained as a 

result of the unreasonable seizure should be suppressed.” According to Crumpton, 

Officer Lima did not have reasonable suspicion to stop Crumpton for failure to 

maintain a single lane or for driving while intoxicated, Detective Lima did not 

have probable cause to stop Crumpton for his failure to turn off his blinker, and 
6

Crumpton’s consent to search his vehicle “does not cure Detective Lima’s illegal 

seizure[.]” Crumpton also challenges the trial court’s finding of fact that “[t]he 

Officer observed the vehicle for a distance of approximately 2 miles during which 

time the vehicle swerved or veered outside its lane of traffic multiple times and the 

turn signal of the vehicle remained on. The vehicle made no turn.” Crumpton 

contends the record does not support the finding that his vehicle “swerved or 

veered outside its lane of traffic multiple times[,]” and that Lima did not indicate 

“why he found this movement of the left tire over the yellow line to be unsafe.” 

We review a trial court’s ruling on a motion to suppress under a bifurcated 

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 

2013). We review the trial court’s factual findings for an abuse of discretion. Id.

We give almost total deference to the trial court’s determination of historical facts, 

particularly when the trial court’s fact findings are based on an evaluation of 

credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 

2010). The same deference is afforded the trial court with respect to its rulings on 

the application of the law to questions of fact and to mixed questions of law and 

fact, if resolution of those questions depends on an evaluation of credibility and 

demeanor. Id. For mixed questions of law and fact that do not fall within that 

category, a reviewing court conducts a de novo review. Id.
7

At a suppression hearing, the trial court is the exclusive trier of fact and 

judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281 

(Tex. Crim. App. 2002). A trial court may choose to believe or to disbelieve all or 

any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. 

App. 2000). We must uphold the trial court’s ruling on a motion to suppress if that 

ruling was supported by the record and was correct under any theory of law 

applicable to the case, even if the trial court gave the wrong reason for its ruling. 

Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 

541 U.S. 974 (2004). 

A police officer can stop and briefly detain a person for investigative 

purposes if the officer has a reasonable suspicion supported by articulable facts 

that criminal activity may be afoot, even if the officer lacks evidence rising to the 

level of probable cause. Terry v. Ohio, 392 U.S. 1, 29 (1968); Woods v. State, 956 

S.W.2d 33, 35 (Tex. Crim. App. 1997). We must examine the reasonableness of a 

temporary detention in light of the totality of the circumstances. See Woods, 956 

S.W.2d at 38. For reasonable suspicion to exist, it is not necessary that an actual 

violation occurred; rather, all that is necessary is that “the officer reasonably 

believed that a violation was in progress.” Green v. State, 93 S.W.3d 541, 545 

(Tex. App.—Texarkana 2002, pet. ref’d); see also Carmouche v. State, 10 S.W.3d 
8

323, 328 (Tex. Crim. App. 2000). In determining whether an officer’s suspicion 

was reasonable, we employ an objective standard: whether the facts available to 

the officer at the moment of detention warrant a person of reasonable caution to 

believe that the action taken was appropriate. See Terry, 392 U.S. at 21-22; 

Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.—Austin 1998, pet. ref’d) 

(citing Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997)). There is no 

requirement that a traffic regulation has been or is about to be violated in order for 

an officer to have reasonable suspicion sufficient to justify a stop of a vehicle. See 

Cook v. State, 63 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.] 2002, pet.

ref’d). An officer may be justified in stopping a driver based upon a reasonable 

suspicion of driving while intoxicated. Id.; see also Hernandez, 983 S.W.2d at 872 

(officer had reasonable suspicion to stop a driver who may have been driving while 

intoxicated where the driver had been weaving between lanes, although the 

observed conduct may not have been “an inherently illegal act”).

Crumpton asserts that Lima failed to explain how many times Crumpton 

swerved, and that because Lima’s testimony established only that the swerve was 

“partial” (meaning, according to Crumpton, that only his left tire crossed the

yellow line), the record does not support the trial court’s finding that Crumpton’s 

vehicle “swerved or veered outside its lane of traffic multiple times.” At the 
9

suppression hearing, Lima testified that he initially observed Crumpton swerve 

away from incoming traffic “[a]nd back into the lane” and then, while Lima 

followed Crumpton for approximately two miles, Lima observed Crumpton 

partially cross “over the lane of traffic and c[ome] back into his lane on more than 

one occasion.” We give deference to the trial court’s finding of fact that 

Crumpton’s vehicle “swerved or veered outside its lane of traffic multiple times[,]” 

as that finding is supported by the record. See Wade, 422 S.W.3d at 666. 

Crumpton relies on Peters v. Texas Department of Public Safety, 404 

S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2013, no pet.), in support of his 

assertion that “[t]o articulate reasonable suspicion, the hearing record should 

demonstrate how an officer’s training and experience combined with 

‘characteristics of the area’ and the time of day or night supported his conclusion 

that a person was driving while intoxicated.” Peters is factually distinguishable, 

and Crumpton misconstrues that opinion.

In Peters, Peters appealed from a suit for judicial review in which the trial 

court affirmed the administrative law judge’s order granting Texas DPS’s petition 

to suspend her driver’s license for ninety days. Id. at 2. At the hearing, the DIC-23, 

signed and sworn by Deputy Kerr, was introduced into evidence. Id. Under the 

portion of the form designated “Reasonable suspicion to make contact,” Deputy 
10

Kerr stated “[w]hile on patrol I observed the above vehicle traveling 40 mph in a 

65 mph posted zone.” Id. Deputy Kerr, who pulled over and arrested Peters, did 

not testify at the hearing. Id. The ALJ issued an administrative decision and an 

order authorizing DPS to suspend Peter’s driving privileges, and the trial court 

affirmed the ALJ’s decision. Id. at 2-3. Arguing that the trial court erred because 

the ALJ’s finding that Deputy Kerr had reasonable suspicion to stop her was not 

reasonably supported by substantial evidence, Peters appealed to the Fourteenth 

Court of Appeals. Id. at 2.

In Peters, DPS contended that there was substantial evidence in the record to 

show that Deputy Kerr had reasonable suspicion to stop Peters because he 

suspected that she was driving while intoxicated and that, in the alternative, Peters’ 

detention was nevertheless lawful because Deputy Kerr detained her as part of his 

“community caretaking” responsibility. Id. at 4. In concluding that the ALJ’s 

finding that Deputy Kerr had reasonable suspicion to stop Peters was not 

reasonably supported by substantial evidence, the court of appeals distinguished 

two cases relied on by DPS. Id. at 4-5. In those cases, the Court of Criminal 

Appeals found that, based on the totality of the circumstances, there was 

substantial evidence in the record to show that the officer had reasonable suspicion 

to stop the defendant for driving while intoxicated. Id. at 4-5, 7 (distinguishing 
11

Foster v. State, 326 S.W.3d 609, 610-11 (Tex. Crim. App. 2010) and Curtis v. 

State, 238 S.W.3d 376, 380-81 (Tex. Crim. App. 2007)). The court in Peters noted 

that in Foster, the officer initiating the stop testified that he decided to detain 

Foster “because he thought Foster’s driving was ‘unsafe and—due to where [they] 

were downtown and the time of night, [the officer] was concerned that maybe 

[Foster] was impaired.’” Peters, 404 S.W.3d at 5 (quoting Foster, 326 S.W.3d at 

610-11). The court in Peters also noted that in Curtis, two state troopers who 

detained Curtis testified they observed Curtis weaving in and out of his lane of 

traffic over a short distance at 1 a.m., and that based on their training in detecting 

DWIs, they knew that a driver’s weaving in and out of a lane was a possible 

indication that the driver was intoxicated. Id. (citing Curtis, 238 S.W.3d at 377, 

380). 

In Peters, Deputy Kerr did not testify and the court of appeals explained that 

“the only relevant evidence in the record is that Peters was observed driving slowly 

on the Sam Houston Tollway at 1:40 in the morning[,]” which was from the DIC23 form. Id. at 2, 5. The court of appeals held that “[w]ithout more, we cannot say 

that Deputy Kerr articulated facts, that when combined with rational inferences 

from those facts, led him to reasonably conclude that Peters was intoxicated before 

he detained her.” Id. at 5 (emphasis added). The court of appeals in Peters merely 
12

distinguished the cases relied on by DPS by noting that the officers in those cases 

articulated more facts than in Peters. 

In order for the State to carry its burden of demonstrating the reasonableness 

of the stop on the basis of a suspicion that appellant was intoxicated, the conduct 

involved must be conduct that gave the officer ample reason to suspect that the 

defendant was driving while intoxicated, or there must be additional evidence (e.g., 

testimony from the officer that, based on his experience, he subjectively suspected 

appellant of being intoxicated; or testimony regarding the objective 

circumstances—time, location, the vehicle’s movement, etc.) that would have led a 

reasonable officer to suspect the driver of being intoxicated. See id. at 4-5; Ehrhart 

v. State, 9 S.W.3d 929, 930 (Tex. App.—Beaumont 2000, no pet.); Hernandez v. 

State, 983 S.W.2d at 870. In the present case, Officer Lima testified at the 

suppression hearing that he had been a Polk County peace officer seven or eight 

years and had experience conducting DWI stops. He explained that when he 

decided to stop Crumpton, Lima suspected that Crumpton was possibly driving 

while intoxicated “[b]ased on the coming in and out of the lane of travel, back into 

the lane of travel, inattentive to the blinker on, things of that nature[,]” and Lima 

“wanted to make sure [Crumpton] was okay to drive.” Lima testified that he 

initially observed Crumpton swerve away from incoming traffic “[a]nd back into 
13

the lane” and then, while Lima followed Crumpton for approximately two miles, 

Lima observed Crumpton’s failure to turn his turn signal off and observed 

Crumpton partially cross “over the lane of traffic and c[ome] back into his lane on 

more than one occasion.” Officer Lima testified that once he had initiated the 

traffic stop and due to the “circumstances that led up to [the] traffic stop[,]” he 

asked Crumpton whether he had anything to drink or if he had taken any 

medication that day.

Unlike in Peters, in this case the officer testified that one of the reasons for 

the stop was that he believed Crumpton might be intoxicated. Based on the totality 

of the circumstances, we conclude that Officer Lima articulated facts, which taken 

together with rational inferences from those facts, that justified his reasonable 

suspicion that Crumpton was driving while intoxicated. See Kennimer v. State, No. 

05-12-01674-CR, 2013 Tex. App. LEXIS 10575, **1-2, 6-7 (Tex. App.—Dallas 

Aug 21, 2013, no pet.) (mem. op., not designated for publication) (although 

officer’s basis for the stop was the appellant’s failure to maintain a single lane, the 

officer observed driving behavior—defendant’s quick acceleration at a traffic 

signal, obscene gesture, and crossing into an adjacent lane—that could reasonably 

lead the officer to believe appellant was driving while intoxicated); Walker v.

State, No. 2-04-336-CR, 2006 Tex. App. LEXIS 1328, at *13-14 (Tex. App.—Fort 
14

Worth Feb. 16, 2006, no pet.) (mem. op., not designated for publication) (where 

officer testified he believed appellant might be intoxicated based on his initial 

observation of appellant driving onto the highway shoulder and then crossing the 

center yellow lines of the road and the officer’s suspicion remained when appellant 

continued weaving while being followed, the officer articulated facts, which taken 

together with rational inferences from those facts, that justified the officer’s 

reasonable suspicion that appellant was driving while intoxicated); State v. Arend, 

No. 2-03-336-CR, 2005 Tex. App. LEXIS 3289, at **11-14 (Tex. App.—Fort 

Worth Apr. 28, 2005, pet. ref’d) (mem. op., not designated for publication) 

(holding officer’s observation of the appellee’s vehicle weaving within the lane

and continued weaving as the officer followed for approximately forty-five to fifty 

seconds, and the officer’s testimony that he believed from his initial observations 

that appellee was driving while intoxicated, provided specific articulable facts to 

justify officer’s reasonable suspicion that the appellee was driving while 

intoxicated); McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.—Fort Worth 

2001, pet. ref’d) (concluding that even if the officer’s testimony that defendant was 

driving at slow speed in left lane and crossed over center line did not establish a 

reasonable suspicion that appellant had violated a traffic law, it did raise sufficient 

facts to justify stop based on reasonable suspicion that defendant was intoxicated); 
15

State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.—Waco 1998, pet. ref’d) (noting 

that “weaving” combined with another act—“i.e., going into another lane of 

traffic, high rates of speed or erratic speed changes”—justify an investigative stop 

and adding that “mere weaving in one’s own lane of traffic can justify an 

investigatory stop when that weaving is erratic, unsafe, or tends to indicate 

intoxication or other criminal activity”) (emphasis added); Gajewski v. State, 944 

S.W.2d 450, 453 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (in light of the 

officer’s experience, his observations of appellant’s weaving across both the solid 

and broken lines dividing traffic was sufficient to provide reasonable suspicion to 

initially stop appellant because, even though no traffic violation had occurred, the 

driver’s conduct could cause the officer to reasonably believe the driver had lost 

control of his mental and physical faculties by ingesting alcohol or drugs); Davis v. 

State, 923 S.W.2d 781, 788 (Tex. App.—Beaumont 1996) (holding stop proper 

where officer testified he suspected driver was intoxicated or tired based on 

weaving within lane), rev’d on other grounds, 947 S.W.2d 240 (Tex. Crim. App. 

1997). The record supports the trial court’s conclusion that Officer Lima had 

reasonable suspicion to believe that Crumpton had violated the law.

Finding that Lima was justified in initiating the stop, we need not address 

Crumpton’s argument that Lima did not have reasonable suspicion to believe that 
16

Crumpton failed to maintain a single lane under section 545.060, that Lima did not 

have probable cause to stop Crumpton for failure to turn off his blinker, or that the 

evidence obtained in the search should have been suppressed because his consent 

to search his vehicle is a fruit of the illegal stop. Issue one is overruled.

ATTORNEY’S FEES

In issue two, Crumpton argues that after being found indigent, his status did 

not change before he was sentenced. He concludes the trial court erred in assessing 

$600 in attorney’s fees in the judgment. A trial court may tax the defendant with 

attorney’s fees if there is a material change in the defendant’s ability to pay 

attorney’s fees between the date the trial court initially determined the defendant to 

be indigent and appointed trial counsel and the date trial counsel renders its final 

judgment. See Tex. Code Crim. Proc. Ann. arts. 26.04(p), 26.05(g) (West Supp. 

2014); see also Roberts v. State, 327 S.W.3d 880, 884 (Tex. App.—Beaumont 

2010, no pet.). 

In this case, the record shows that the trial court found Crumpton to be 

indigent and appointed trial counsel before Crumpton was tried on the charge of 

possession of a dangerous drug. Following his conviction for possession of a 

dangerous drug, the trial court found Crumpton remained indigent and the trial 

court appointed counsel to represent Crumpton in this appeal.
17

The trial court made no express findings regarding whether there had been a 

change in Crumpton’s status as an indigent defendant. Nor is there any evidence in 

the record that would support any implied finding that Crumpton’s financial 

circumstances materially changed following the trial court’s initial determination 

that he was indigent. Because no evidence supports any implied finding that there 

was a material change in Crumpton’s ability to pay attorney’s fees, the trial court 

erred in awarding the fees as costs. See Tex. Code Crim. Proc. Ann. art. 26.05(g); 

Roberts, 327 S.W.3d at 884. We sustain issue two.

We are authorized by the Texas Rules of Appellate Procedure to render the 

judgment the trial court should have rendered. See Tex. R. App. P. 43.2, 43.3. 

Therefore, we modify the judgment the trial court rendered by deleting the award 

of $600 in attorney’s fees as costs of court. We affirm the trial court’s judgment as 

modified.

AFFIRMED AS MODIFIED.

 

_________________________

 LEANNE JOHNSON

Justice

Submitted on October 15, 2014

Opinion Delivered December 10, 2014

Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.