MEMORANDUM OPINION

Following the denial of his motion to suppress evidence, appellant Michael Marrero pleaded guilty to the misdemeanor offense of driving while intoxicated.^[1] The trial court assessed

punishment at 365 days’ confinement in the Comal County Jail but suspended imposition of the sentence and placed Marrero on community supervision for a period of 15 months. In a single issue on appeal, Marrero asserts that the trial court abused its discretion in denying his motion to suppress.

We will affirm the judgment of conviction.

BACKGROUND

Marrero was arrested for driving while intoxicated following a traffic stop. In his motion to suppress, Marrero asserted that the traffic stop was illegal because, in his view, the at least ten under. As we kept going, his speed kind of fluctuated, either plus or minus, a few miles per hour. A couple of times he did not completely cross over the center divider, but he did brush it and ride on it a couple of times. He just—it was just back and forth between his lane. He never

crossed the solid white line onto the shoulder, it was just more of the fact that he kept brushing the center divider.” Sepeda also characterized the vehicle’s movement as “drifting back and forth” within its lane of traffic. Lehr similarly testified that the car “was very unsteady within the traffic

lanes, going towards the left, towards the center divider and then towards the right several times, towards the right shoulder.” Lehr also testified that the vehicle’s speed “was not constant. It didn’t have a great fluctuation, but it wasn’t a constant speed as most vehicles maintain.” After following

the vehicle for several minutes, the deputies initiated a traffic stop. During the stop, the driver of the vehicle was identified as Marrero.

A video recording of the traffic stop, taken from the patrol vehicle’s dashboard camera, was also admitted into evidence. The video depicted Marrero’s car passing the patrol vehicle and subsequently being followed and then pulled over by the deputies. Sepeda testified that because of the limited view of the front-facing video camera in their car, the recording did not

show Marrero’s vehicle cross the yellow line as it was passing the patrol vehicle. Sepeda explained, “[W]hen he first passed us, what you can’t see is when I moved over as he got probably to between my front door and rear door, he came pretty much into my lane. That’s why I moved over. And if you watch the video from the beginning, you see me move over and kind of swerve, where I went out and came back in. You only catch from my in-car video where he started to brush the line, but you don’t catch where he got completely on the line as he was passing us.”

At the conclusion of the hearing, the trial court denied the motion to suppress.

Subsequently, the trial court made the following findings of fact: Based on the above findings, the trial court made the following conclusions of law:

1. Reasonable suspicion existed that the Defendant had committed a traffic violation by failing to maintain a single lane of travel.

2. Reasonable suspicion existed that the Defendant was driving while intoxicated because he crossed the center line, drifted within his lane, and was unable to control his speed.

3. Weaving within a single lane and inconsistent speed were considered in a totality of the circumstances analysis.

After the trial court denied the motion to suppress, Marrero pleaded guilty to driving while intoxicated and the trial court sentenced Marrero as indicated above. This appeal followed.

STANDARD OF REVIEW

“In review of a trial court’s ruling on a motion to suppress, an appellate court must apply a standard of abuse of discretion and overturn the trial court’s ruling only if it is outside the zone of reasonable disagreement.”2 We apply a bifurcated analysis, giving almost total deference

to a trial court’s findings of historical fact and credibility determinations that are supported by the record, but reviewing questions of law de novo.^[3] When reviewing a trial court’s ruling on a motion to suppress, we view the evidence in the light most favorable to the ruling.^[4] When the trial court

2 Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). 3 Delafuente v. State, 414 S.W.3d 173, 177 (Tex. Crim. App. 2013) (citing Anderson v. Bessemer City, 470 U.S. 564, 575 (1985); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). 4 State v. Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011) (citing State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)).

makes findings of fact, as it did here, we determine whether the evidence supports those findings.^[5]

We then review the trial court’s legal rulings de novo unless the findings are dispositive.^[6] “We will sustain the trial court’s ruling if that ruling is ‘reasonably supported by the record and is correct on any theory of law applicable to the case.’”7

ANALYSIS

In his sole issue on appeal, Marrero asserts that the trial court abused its discretion by denying his motion to suppress. Specifically, Marrero contends that the record does not support the trial court’s conclusions that the officers had reasonable suspicion to believe that Marrero had committed either a traffic violation or the offense of driving while intoxicated so as to justify the traffic stop.

A police officer may lawfully stop an automobile when that officer has reasonable suspicion to believe that a traffic violation has occurred.^[8] “Reasonable suspicion requires more than a hunch; it exists only when an officer has specific, articulable facts that, taken together with

reasonable inferences from those facts, would lead the officer to reasonably conclude that the 5 Id. 6 Id.; see also State v. Sheppard, 271 S.W.3d 281, 291-92 (Tex. Crim. App. 2008) (explaining that factual findings consist of “who did what, when, where, how, or why” and “do not include legal rulings on ‘reasonable suspicion’ or ‘probable cause’; those are legal conclusions subject to de novo review, not deference”). 7 Valtierra v. State, 310 S.W.3d 442, 448 (Tex. Crim. App. 2010) (quoting Dixon, 206 S.W.3d at 590). 8 See Delafuente, 414 S.W.3d at 177; Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); Garza v. State, 261 S.W.3d 361, 367 (Tex. App.—Austin 2008, pet. ref’d).

person detained is, has been, or soon will be, engaging in criminal activity.”9 However, “there is no requirement that a traffic regulation is actually violated; it is sufficient to show that the officer reasonably believed that a violation was in progress.”10 The reasonable-suspicion determination is

an objective one made by considering the totality of the circumstances known to the officer at the time he initiated the stop.^[11] “The standard is not what an omniscient officer would have seen, but rather what a reasonable officer would have done with what he actually did see.”12 A traffic stop will be deemed valid as long as a reasonable officer in the same circumstances as the detaining officer could have stopped the car for the suspected offense.^[13]

Marrero first asserts that the record does not support the trial court’s conclusion that

the deputies had reasonable suspicion to believe that Marrero had violated section 545.060 of the Transportation Code, which provides that “[a]n 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.”14 In order for a driver to violate that provision, there must be evidence that the driver, in addition to failing to stay

9 Delafuente, 414 S.W.3d at 177 (citing Ford, 158 S.W.3d at 492).

within a single lane of traffic, did so in an unsafe manner.^[15] According to Marrero, there is no evidence in the record that Marrero’s driving was unsafe. To the contrary, Marrero observes, Sepeda testified that the deputies decided to stop the vehicle “before it became unsafe,” and Lehr testified that he did not consider Marrero’s driving to be “unsafe toward other vehicles.”

However, as the State argued at the suppression hearing below and again argues on appeal, section 545.060 is not the traffic provision at issue in this case. Instead, the relevant provision is section 545.051, which provides that “[a]n operator on a roadway of sufficient width

shall drive on the right half of the roadway.”16 Pursuant to that provision, “[t]raveling across the yellow line into oncoming traffic is a traffic violation in itself and does not require the additional element of an unsafe maneuver by the driver as does [section 545.060].”17

In this case, Deputy Sepeda testified that he observed the tires of Marrero’s vehicle

“touch the double yellow line” on the roadway and that this action caused Sepeda to have to

“swerve” out of the way of Marrero’s vehicle. Sepeda added that he believed Marrero’s vehicle almost struck the driver’s side of his vehicle and that “probably half of his tire crossed into my lane as he was passing.” Sepeda also testified that Marrero’s vehicle “came pretty much into my lane” and that was why he had to move out of the way. The trial court found Sepeda’s testimony to be credible, and we are to defer to that determination. Additionally, both Sepeda and Lehr testified that they observed the vehicle in front of their patrol vehicle swerve toward the shoulder of the road as

Marrero’s vehicle was passing it, which supports the trial court’s finding that Marrero’s vehicle had

earlier crossed the yellow line when it was passing that vehicle. Moreover, on the video recording, after the deputies had turned around and were following Marrero’s vehicle, its tires can be seen touching the yellow dividing line on multiple occasions. Viewing this evidence in the light most favorable to the ruling, we conclude that it supports the trial court’s determination that the deputies had reasonable suspicion to believe that Marrero had committed a traffic violation.^[18]

Moreover, even if the record did not support a finding that the deputies had reasonable suspicion to believe that Marrero had committed a traffic violation, the trial court also

concluded that the deputies had reasonable suspicion to believe that Marrero had committed the offense of driving while intoxicated, which would also have justified the traffic stop.^[19] Whether an officer has reasonable suspicion to stop a motorist for driving while intoxicated depends on the totality of the circumstances.^[20] These circumstances include the time of day at which the suspect is

driving, the location where the suspect is found, any observed instances of erratic driving, and the speed at which the suspect is driving.^[21] Here, the evidence summarized above regarding Marrero’s driving on or near the yellow dividing line, even if it did not support a finding that Marrero had

committed a traffic violation, would support a finding that Marrero was driving erratically and even dangerously. Additionally, Sepeda characterized the vehicle’s movement as “drifting back and forth” within its lane of traffic, while Lehr testified that the vehicle “was very unsteady within the traffic lanes, going towards the left, towards the center divider and then towards the right several times, towards the right shoulder.” This “drifting” and “unsteady” movement can be seen throughout the video recording of the stop that was admitted into evidence. Also, both deputies testified that the vehicle’s speed “was not constant” and “fluctuated” as they were following it, and Sepeda

testified that Marrero was driving at least ten miles per hour below the speed limit. This evidence, when viewed in the light most favorable to the trial court’s ruling, supports the trial court’s conclusion that the deputies had reasonable suspicion, based on the totality of the circumstances, to believe that Marrero had committed the offense of driving while intoxicated and were justified in stopping Marrero for that reason.^[22] On this record, we cannot conclude that the trial court abused its discretion in denying Marrero’s motion to suppress.

We overrule Marrero’s sole issue on appeal.

CONCLUSION

The judgment of conviction is affirmed.

__________________________________________ Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: January 14, 2016 Do Not Publish