### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00728- CR

Jonathon D. P owell, Ap pellant

v. The State of Texas, App ellee

F ROM CO UNTY COURT AT LAW NO . 2 O F B ELL COUNTY NO. 2C08- 0687 0, H ONO RAB LE JO HN MI SCH TIAN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Following the denial of his motion to suppress evi d en ce , appellant J onathon D. Powell pleade d nolo contende re to the offense of driving while i ntox icated. See Tex. Penal C ode Ann. § 49.04 (West 2011). The trial court sentenc ed Powell to three day s’ confine ment in county jail and a fine of $850.00. I n a single issue on appea l, Powell asser ts that the trial co u rt ab u s ed its discretion in deny

ing his motion to suppress. We will affirm the judg ment.

BACK GR OUND At the hear ing on Powell’s motion to suppress, the trial court heard ev i d en ce that in the ear ly

morning hours of J uly 27, 2008, at approximately 1:52 a .m., O ffice r Michae l H eath of the Nolanville Police Depa rtment observe d a black For d Mustang unable to ma intain a single lane of traff ic while trave ling eastbound on a one-w ay , two-lane portion of a divided roadw ay , U.S. Hig hway 190 in Be lton. Specifica l l y , He at h t es tified, “I t was crossing the cente r . . . linebetwee n the two lanes, as well as the outer lines of the roadw ay .” Hea th observe d the vehicle cross

the cente r line “a minimum of two times” and cr oss the outside (shoulder) line three times. Hea th testified t hat t he vehicle was driving on the s houlder of the roa d and had no permissible rea son to do so, such as to make a rig ht turn, to allow another vehicle to pass, or t o av o i d a co l l i s i on. At

one point, He ath also observe d the vehicle chang e lanes without sig naling

. Hea th’s patrol car was in the rig ht lane, while the ot her ve hicle wa s in the left lane a pproxi mately

100 fee t in front of the patrol car . Hea th testified that t h er e was other traff ic on the roadw ay behind his patrol car at the time, but he char acte rized the traf fic a s “lig ht.” Ba sed on his observa tions, Hea th believed the vehicle had committed the traff ic offe nses of failure to maintain a single lane, driving on the shoulder of the roadw ay , and failing to signa l a lane chang e. These fac ts, in addition to the fac t that he observe d the vehicle at approximately 1:52 a.m. on a “Saturda y night, Sunday morning ,” also led Hea th to believe the driver of the vehicle was intox icated. Hea th did not immediately conduct a traff ic stop. I nstead, beca

use Hea th observe d the vehicle driving in the city of Be lton, he fi rs t “c o m m unicated with the Be ll County Communi cations Center to advise for a Be lton Unit to come and aff ect a traff ic stop.” Hea th was advised “that all Be lton Units wer e tied up at a major acc ident on I -35,” so he asked for

a De p ar t m en t o f Public Safety (DPS) unit instead. Howeve r, DPS “wa s also out at the major

acc ident” and was thus unavailable

. Hea th then decide d to conduct the traff ic stop himself. He did

so afte r “g etting on to I -35

. . . prior to Ex it 297,” which was “just inside Temple.” After conducting the traf fic stop, Hea

th identified the driver

of the ve hicle as Powe ll. 1

During Hea th’s testimony , a video rec ording of the traff ic stop was admitted into evidenc e. 1 Hea th acknow ledg ed that he did not turn on his video came ra until afte r he had observe d the failure 2On cross-examination, Hea th admitt ed that on his traff ic report, he did not include the failure to signa l a lane chan ge. Hea th also admitted that he had followed Powell for five or six miles befor e conducting the traff ic stop. On redire ct, Hea th testified t h at h e co n ducted the traff ic s top out of concern for “public sa fety as we ll as the s afe ty of t he occupants i n the vehicle.” Hea th added that he has had “many ” experience s with intox icated drivers in his y ear s of experience

as a c ertified pe ace office r. 2

At the conclusion of the hear ing, the t ri al court took the matter under advisement. Subsequently , the trial court denied the motion to suppress and enter ed written finding s of fac t and conclusions of law , including the following :

The Court finds the testimony of Offic er Michae l Hea th was u n controve rted and that no other witnesses o ff er ed t es timony

. The Court further finds that Offic er Michae l Hea th is a cre dible witness and the Court acc epts as true his testimony as the basis for conducting the traff ic stop and arr esting and questioning the Def end an t, J onathon Danie l Powell. The Court finds that the testimony of Offic er Michae l Hea th demonstrated sufficie nt lawful basis for the arr est of the Def endant, J onathon Daniel Powell. The Court finds Offic er Hea th had rea sonable s u s p ic io n , b ased on articula ble fac ts, that the Def

endant had eng ag ed in cr iminal conduct suffic ient to leg ally stop the Defe ndant. . . . I t is the Court’s conclusion that t h e Def endant violated section 545.060 of the Tex as T ra n s p ortation Code by failing to maintain a single lane, violated section 545.058 of the Texas Transpor tation Code by unlawfully driving on an improved shoulder, and violated section 545.104 of the Texas Transpor tation Code

to maintain a si ng le l ane and t hat t he allege d driving on the s ho u l d er o f the roadway was also not visible on the rec ording

. Howeve r, Hea th testified that the failure to signa l a lane chang e was visible on the re cording

. At the time of the hear ing, Hea th testified that he had approximately ten y ear s’ experience

. 2 At the time of the tra ffic stop, He ath testified that he ha d approximately eig ht y ear s’ experienc e. 3by failing to signa l his lane chang e. The court thus conclude s that Offic er Hea th had

leg al authority

to conduct a tr aff

ic stop and deta in the Def endant. The Court further finds, b as ed upon the rec ord, that Offic er Hea th was justified in making an investiga

tory stop becaus e He at h had a rea sonable suspicion that the Def endant wa s driving w hile intox icated. T h e Co u r t f u rther finds, based upon the rec ord, specific ally Offic er Hea th’s te s ti mo ny that Hea th felt the vehicle posed a threa t to the safe ty of the public and the occupa nts, that the stop was re asonable in acc ordanc e with the community car etake r func tion.

After Powell’ s m o t i o n to suppress was denied, he pleade d nolo contende re to driving while intox icated a

nd was sente nced to thre e day s in jail as noted above. T his appea l followed.

STANDARD OF REVIEW “A trial court’s ruling on a mot ion to suppress, li ke any ruling on the adm i s sion of evidenc e, is subject to revie w on appea l for abuse of discretion.” Amador v. State , 275 S.W .3d 872, 878 (Tex. Crim. App. 2009) (citing State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)). “‘In other words, the trial court’s ruling will be upheld if it is rea sonably supported by the rec ord and is corr ect under any theory of law applicable to the case .’” Id

. (quoting Ramos v. State , 245 S.W .3d 410, 417-18 (Tex. Crim. App. 2008)). We reve rse the ruling “only if it i s o u t s ide the zone of

rea sonable disag ree ment.” Dixon , 206 S.W .3d at 590. “I n revie wing a t ri al court’s ruling on a motion to suppress, appellate courts must view all of the evidenc e in the light most favor able to the trial court’ s ruling.” State v. Garc ia-Cantu , 253 S.W .3d 236, 241 (Tex. Crim. App. 2008).

When a trial cou rt m ak es expli cit fac t finding s, as it did here , the appellate court deter mines whether the evidenc e, when viewed in the light most favor able to the trial court’s ruling , supports these fac t finding s. State v. Kelly , 204 S.W .3d 808, 818 (Tex. Crim. App. 2006); Figueroa

4v. State , 250 S.W .3d 490, 508 (Tex. App.—Austin 2008, pet. ref ’d). We then revie w the trial court’s leg al ruling de novo unless its expli cit fac t fin d i n gs t h at are supported by the rec ord are also dispositi ve of the leg al ruling

. Kelly , 204 S.W .3d at 818; Figueroa , 250 S.W .3d at 508.

ANALYSIS I n his sole issue on appea l, Powell asser ts that the trial court abused its discretion in denying his motion to suppress beca use, in Powell’s view, the trial court “m ad e err oneous interpre tations of the evidenc e prese nted by the State conce rning [t he] basis of the stop of appellant’ s motor vehicle.” Powell essentially makes two arg uments as to why the traff

ic stop was illega l. First, he attacks eac h of the alleg ed traff ic violations that formed the basis for the traff ic stop a nd asser ts that what He ath observe d prior to the st op wer e not actua l traff ic vi olations. Second, he c ontends that the stop was impermissible based on what Powell char acte rizes as an excessive delay betwee n the observation of the alleg ed tra ffic violations and the stop of Powell’s vehicle.

An office r may initiate a traff ic stop if he rea sonably suspects that the driver has violated the law. See Ford v. State , 158 S.W .3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exis ts if the office r has specific articula ble fac ts that , wh en combined with rational infere nces from those fac ts, would lead him to rea sonably suspec t t h at a particula r person has, or soon will be , eng ag ed in c riminal activity

. Neal v. State , 256 S.W .3d 264, 280 (Tex. Crim. App. 20 0 8 ); Ga r cia v. State , 43 S.W .3d 527, 530 (Tex. Crim. App. 2001). I n making this deter mination, we consider the totality of the circ umstances. Ford , 158 S.W .3d at 492; Garcia , 43 S.W .3d at 530.

5We first addre ss Powell’s contention that He at h d i d not observe actua l traff ic

v iolations. Powell asser

ts that he did not commit the offe nse of failure to maintain a single lan e beca use there was no traff

ic in the vicinity of his vehicle and, there fore , h i s m ovement was not unsafe

. See Tex. Transp. Code Ann. § 545.060(a) (West 2011) (providing that driv er “s h al l d rive as near ly as prac tical entirely within a single lane and may not move from the l an e u n l es s that movement can be made safely ” (emphasis added) ); F o w l er v. Stat e , 266 S.W .3d 498, 504-05 (Tex. App.—For

t Worth 2008, pet. ref

’d) (re versing trial court’s denial of motion to suppress beca use there was no evidenc e that defe ndant’s failure to maintain single lane was done unsafe ly). Simi larly , Powell claims that he did not com m it the offe nse of driving on an improved shoulder “bec ause there wa s no evidenc e that Appe llant drove on the improve d shoulder,” a s prohibited by the transporta tion code. See Tex. Transp. Code Ann. § 545.058(b) (West 2011); Scardino v. State , 294 S.W .3d 401, 406 (Tex. App.—Corpus Christi 2009, no pet.) (re versing trial court’s denial of motion to suppress beca

use office r never testified th at d ef en d an t drove on shoulder of roadw ay ). Finally , Powell asser

ts that Hea th did not actual l y o bserve him failing to signa l a lane chang e b ec ause he did not include it in his written repor t. I nstead, Powell claims, Hea th observe d it fo r the first time while viewing the rec ording of the traff ic stop in court and “adde d it to his testimony at the hea ring .” First, contra

ry to the infere n ce s t h at Powell draw s from the evidenc e, the rec ord supports the trial court’s expli cit fac t finding s t hat Powell committed cer tain traff ic violations. Reg arding th e o ff

ense of failure to maintain a single lane, althoug h Hea th testified that traff ic

was “lig ht,” he also testif i ed t h at t h er e wer e car s behind his patrol car . Thus, beca use there was traff ic in the vicinity of Hea t h ’s p at ro l car , and beca use Hea th testified that his patrol car was 6only approximately 100 fee t behind Powell’s vehicle, the trial court did not abuse its d i s cr et ion

in finding tha t Powell committ ed the tra ffic of fense of fa ilure to maintain a sing le lane. See Cook v. Stat e , 63 S.W

. 3 d 924, 928 (Tex. App.—Houston [14t h Dist.] 2002, pet. ref’d) (conc luding that office r was n o t re q u i re d to wait to initiate traff ic stop “until appellant place d himself or others in immediate peril as a result of his err atic driving ”). Reg arding the offe nse of unlawfully driving on

an improved shoulder, Hea th testified that he observe d Powell’s vehicle drive “four to five inches” into the shoulder of the roadwa y . Thus, there was a t least some evidenc e in the re cord suppor ting the trial court’s finding that Powell committed that offe nse. Finally , simply beca use Hea th did not include in his written repor t the offe nse of failure to signa l a lane chang e does not mean that he did
not observe it. Hea th testified that he did observe Powell commit that offe nse, and the trial court did not abuse its discretion in finding Hea th’s testimony to be cr edible. Moreove r, in the case s to which Powell cites in his brief, the office rs testified that the

rea son they conducte d the traff ic stop was beca

use of a particula

r traff ic violation, and the rec ord did
not support a finding t hat s u ch a t ra ff ic vi olation had occurre d. I n this case , in contra st, althoug h He at h testified t hat he believed Powell had commit ted t he above t raf fic offenses, he also testif i ed that he conducte d t h e t ra ffic stop beca use he believed, based on ever y thing he had observe d, that Powell was driving while intox icated. I n fac t, one of the trial court’s expli cit finding s was that, “base d upon the rec ord

. . . Offic er Hea th was justified in making an investigato ry stop beca use Hea th had a rea sonable suspicion that the Def endant wa s d ri v i n g while intox icated.” Thus, our inquiry is whether the rec ord supports the trial court’s finding that, based on the tota l i t y o f the circ umstances, Hea th had rea sonable suspicion to believe Powell was driving while intox icated. See Ramos , 245 S.W .3d at 418 (appe llate court must uphold trial court’s ruling “if it is rea sonably 7supported by the rec ord and is corr ect under any theory of law applicable to the case ”). We conclude

that it does. The evidenc e of err atic driving , summarized above, along with the additional evidenc e that the driving was occur ring on a Sunday morning at approximately 1:52 a.m. and that Hea th had observe d “many ” intox icated drivers in his y ear s of experience as a peac e office r, would support the trial court’s finding that Hea th had rea sonable suspicion to believe that Powell wa s driving while intox icated. See Curtis v. State , 238 S.W .3d 376, 381 (Tex. Crim. App. 2008) (uphol ding

rea sonablene ss of traff

ic stop on simil ar fact s ); Ga j ew s ki v. State , 944 S.W .2d 450, 453 (T ex . App.—Houston [14t h Dist.] 1997, no pet.) (conc luding, on simil ar fac ts, that even t h o u gh d r iv e r mi g h t not have committed traff ic offe nse did not mean that office r lacke d rea sonable suspicion to believe dr iver wa s intox icated)

.

As for Powell’s arg ument th at Hea th waited for an unrea sonable leng th of time befor e conducting the traff

ic stop, the trial court made no specific finding s reg arding the delay

. Howeve r, in the absenc e of such finding s, we are to assume the trial court made implied finding s nece ssary to support its ultimate ruling as long as the implied f indings are supported by the rec ord. See Turner

v. Sta t e , 2 6 1 S

. W.3d 129, 133 (Tex. App.—San Antonio 2008, no pet.) (whe n appellant failed to reque st additional or supplemental fi n d i ng s on contested issue of delay in initiating traff ic stop,

re v i ewing court implied finding s that wer e nece ssary to support trial court’s ruling ); see a l s o Valtierra v. State , 310 S.W .3d 442, 449 (Tex. Crim. App. 2010) (stating that “[d] espite the lack of an expli cit fac tual finding ” on contested fac t issue, revie wing courts “still must view the totality of the fac ts in the light most favor able to the trial court’s ultimate ruling ”). As support for his contention that the delay was unrea sonable, Powell relies on State v. Dixon , 151 S.W .3d 271 (Tex. App.—Texarkana 2004), aff’d , 206 S.W .3d 587 (Tex

. C ri m . App. 2006). I n that case , the 8court of appea ls conclude d “the distance or leng th of time the office r followed the vehicle” prior to

conducting a tr af

fi c stop “is clea

rly a matter to be considere d when a court is deciding whether a traff ic stop is rea sonable.” Id

. at 274. The court conclude d that the delay in that case , 3.2 miles, was

unrea sonable. Id

. Howeve r, the court emphasized, “We do not hold that a delay of this distance will alway s be unrea sonable. I n eac h such instance, the court should proper ly consider all of the fac tors surrounding the stop.” Id . at 275. 3

I n th is c a s e , Hea th conducte d the traff ic stop afte r following Powell for app r o xim a te ly fi v e to six miles. Howeve r, Hea th attributed the delay to his attempts to g et a unit from Be l t o n

or DPS to conduct the traff ic stop. Even though Hea th could have conducte d the traff ic stop himself, the trial court could have impliedly found that this was a rea sonable justification for the delay

. See Tex. Code Crim. Proc. Ann. art. 14.03 (West Supp. 2010) (desc ribing jurisdictional require ments for office rs making arr ests); see also Turner , 261 S.W .3d at 133-34 (conc luding that

rec ord su p p o rt ed finding by trial court that any delay in stopping defenda nt was not unrea sonable

u n d er circ umstances)

. Moreove r, as the State observe s, althoug h the stop occur red sever al miles afte r the initial traff

ic violations wer e obs er v ed , t h e trial court could have rea sonably inferr ed from Heath’s testi mony that the s top occur red shortly afte r he observe d the final traf fi c v i o l at i on, failure to sig nal a lane chang e. Finally , as the Dixon court obser ved, the leng th of the delay is just one of many fac tors that courts shoul d consider in deter mining the r easona

bleness of the s top and

Upon review, t he court of criminal appea ls observe d that the i ssue presented in the ca s e 3 was not the amount of time o r d i stance betwee n the alleg ed traff ic violation and the traff

ic stop. State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006). I nstead, “[i] t is clea r from the hear ing that the trial judge simply did not believe that the driver in this case committed a traff ic offe nse . . . .” Id . The timing c oncer

n was just one fa ctor c onsidered by the trial cour

t. See id . at 191. 9that in eac h case , “the court should proper ly consider all of the fac tors surrounding the stop.” Dixon ,

151 S.W .3d at 275 (citing Balentine v. State , 71 S.W .3d 763, 771 (Tex. Crim. App. 2002) ). Her e, the trial court co n cl u d ed that Hea th’s detention and arr est of Powell was lawful and that Hea th had rea sonable suspicion to believe that Powell was driving while intox icated. I n so concluding , the trial court implicitl y found that any delay in stopping Powel l af t er He ath’s initial observa tions of Powell’s driving was not unrea sonable. The rec ord, as summarized above, supports this finding

. Acc ording ly , we cannot conclude that the trial court abused its discretion in d en y i n g t h e motion to suppress. We overrule Powell’s sole issue on appe al.

CONCLUSION We affir m the judgme nt of the trial cour t.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: September

14, 2011 Do Not Publish

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