Walter Wayne Blaydes v. State ( 2006 )

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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-150 CR

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WALTER WAYNE BLAYDES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 1
Montgomery County, Texas

Trial Cause No. 04-197988

MEMORANDUM OPINION
Pursuant to a plea bargain, Walter Wayne Blaydes pled guilty to a misdemeanor offense of driving while intoxicated. See Tex. Pen. Code Ann. §§ 49.01(2)(A), 49.04(a) (Vernon 2003). The trial court sentenced Blaydes to 180 days confinement in county jail, suspended the imposition of the sentence, and placed him on community supervision for one year. He appeals from a pretrial ruling denying his motion to suppress.

Blaydes contends the evidence obtained as a result of a traffic stop should have been suppressed because the stop violated his constitutional rights under both the United States and Texas Constitutions and his rights under article 38.23 of the Texas Code of Criminal Procedure. He argues the facts did not support a reasonable belief he committed a traffic violation or was driving while intoxicated; Blaydes maintains the stop, detention, and warrantless arrest were illegal.

In reviewing a trial court's ruling on a motion to suppress, we give great deference to the trial judge's determination of historical facts and review the trial court's application of the law to the facts de novo. Torres v. State, No. PD-1322-04, 2005 WL 3310462, at *2 (Tex. Crim. App. Dec. 7, 2005) (citing Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002)). When, as here, the trial court does not file any findings of fact, the reviewing court considers the evidence in the light most favorable to the trial court's ruling. Torres, 2005 WL 3310462, at *2. The appellate court assumes the trial court made implicit findings of fact that support its ruling, so long as the record supports the findings. Id. As the sole trier of fact at the suppression hearing, the trial judge evaluates the witness's testimony and credibility. Id.

When an officer has reasonable suspicion to believe that a person is violating the law, including a traffic law violation, he may temporarily detain the person. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); see Aviles v. State, 23 S.W.3d 74, 76 (Tex. App.--Houston [14^th Dist.] 2000, pet. ref'd) (A detention is justified when person commits traffic law violation in officer's presence.). Reasonable suspicion is present if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a person actually is, has been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492 (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim App. 2001)). However, "even absent evidence of violation of a specific traffic law[,]" a person's "[e]rratic or unsafe driving may furnish a sufficient basis for a reasonable suspicion that the driver is intoxicated[.]" James v. State, 102 S.W.3d 162, 171-72 (Tex. App.--Fort Worth 2003, pet. ref'd); see also Richardson v. State, 39 S.W.3d 634, 638, 640 (Tex. App.--Amarillo 2000, no pet.); State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.--Waco 1998, pet. ref'd). A determination of the reasonableness of the suspicion is based on the totality of the circumstances. Ford, 158 S.W.3d at 492-93.

Officer Michael Bellard, Jr. testified he observed a pickup "weaving in its lane" shortly after midnight and saw the vehicle cross over the center divide line into another lane traveling in the same direction. Then he observed the vehicle cross back into its previous lane, move to the far edge of that lane, and ride the fog line. He testified the vehicle was going "way below" the posted speed limit at least part of the time. Bellard indicated he activated his video equipment at this point and continued following the driver (Blaydes). Bellard testified he observed the vehicle make a wide right turn at an intersection and cross over into the oncoming lane of traffic. The officer indicated the driver was also riding his brakes and weaved additional times within the lane. Bellard indicated these factors caused him to suspect the driver was intoxicated.

Blaydes asserts the officer gave three different versions of the events -- one on the videotape itself, one in the officer's written report, and one in his testimony at the suppression hearing. In the video, the officer told Blaydes he was stopped for weaving ("moving from side to side") within the lane and making a sharp right turn. In the written report, the officer added the acts of crossing one time over the center divide line between lanes and making a wide right turn. At the suppression hearing, the officer testified to the additional facts he observed. Officer Bellard explained at the hearing he had independent recollection of the stop, and he said that '[a]fter watching [the video he] remember[ed] certain events." In explaining the discrepancy between the descriptions of the turn, Bellard testified he was distracted during the stop and said sharp turn rather than wide turn.

An appellate court must give almost total deference to the trial judge's evaluation of the witness's demeanor and credibility. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). The trial court resolves all conflicts in the testimony and may accept or reject any or all of a witness's testimony. Ste-Marie v. State, 32 S.W.3d 446, 448 (Tex. App.--Houston [14^th Dist.] 2000, no pet.). In denying the motion to suppress, the trial judge implicitly accepted Officer Bellard's testimony. See State v. Cerny, 28 S.W.3d 796, 799 (Tex. App.--Corpus Christi 2000, no pet.) (Officer's testimony at hearing contradicted his report; appeals court deferred to trial court on witness's credibility.). The trial judge also viewed the videotape; unlike the video in Carmouche v. State, the tape here does not present indisputable visual evidence contradicting essential portions of the officer's testimony. See Carmouche v. State, 10 S.W.3d 323, 331-32 (Tex. Crim. App. 2000).

Blaydes relies on several cases where the reviewing courts found driving conduct insufficient to justify traffic stops: Cerny, 28 S.W.3d at 798-801; Hernandez v. State, 983 S.W.2d 867, 870-871 (Tex. App.--Austin 1998, pet. ref'd); Tarvin, 972 S.W.2d at 910- 12. In each of these cases, the stop was based only on observation of an alleged traffic offense, and there was no testimony the officer suspected the driver was intoxicated. See James, 102 S.W.3d at 171-72. Here, we need not determine which traffic regulation may or may not have been violated. The officer testified he suspected the driver was intoxicated based on his observation of the driving conduct. "Erratic or unsafe driving may furnish a sufficient basis for a reasonable suspicion that the driver is intoxicated even absent evidence of violation of a specific traffic law." Id. at 172.

Officer Bellard testified his suspicion the driver was intoxicated was based on the following driving conduct: weaving within the lane, driving "way" below the posted speed limit at least part of the time, crossing over the line between the lanes, riding the fog line, and making a wide right turn. These circumstances considered together were sufficient to establish a reasonable suspicion Blaydes was driving while intoxicated. See Davy v. State, 67 S.W.3d 382, 393 (Tex. App.--Waco 2001, no pet.) (Although none of the facts standing alone -- driving in circles in a parking lot and driving on the road at one-half posted speed limit close to right side of road -- sufficed to establish reasonable suspicion, taken collectively, the facts were sufficient to justify the stop.). The trial court did not err in denying appellant's motion to suppress. The judgment of conviction is affirmed.

AFFIRMED.

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DAVID GAULTNEY

Justice

Submitted on December 6, 2005

Opinion Delivered February 15, 2006

Do Not Publish

Before McKeithen, C.J., Gaultney, and Kreger, JJ.