
    Kyle David CURTIS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00125-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted July 24, 2006.
    Decided Oct. 31, 2006.
    
      Jeff Harrelson, Harrelson, Moore, Giles, LLP, Texarkana, for appellant.
    Deborah Moore, Asst. County Atty., Gary D. Young, Lamar County and Dist. Atty., Paris, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Chief Justice MORRISS.

One night, not long after midnight, Kyle David Curtis was driving in Paris, Texas, on the southeast loop, a four-lane divided highway, when two state troopers observed his vehicle weave twice across “the inside fog line” and then once “across the broken lane divider line and back,” all in the space of “about several hundred yards as opposed to, let’s say, a quarter mile or so.” The officers stopped Curtis and arrested him for driving while intoxicated (D.W.I.).

A jury convicted Curtis and assessed punishment at ninety days in the county jail and a fine of $2,500.00. Curtis appeals, asserting four points of error. Because we agree with Curtis that the initial traffic stop was not justified, we reverse the trial court’s judgment without reaching Curtis’ other points of error.

Curtis claims the trial court erred in admitting, over his motion to suppress, all evidence gained after officers “illegally stopped Curtis’ vehicle without warrant, probable cause, or reasonable suspicion.” It is undisputed that this was a warrant-less stop and was without Curtis’ consent. The State asserts, though, that both reasonable suspicion and probable cause support the stop.

The standard of review for the trial court’s ruling on a motion to suppress is abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999); Freeman v. State, 62 S.W.3d 883 (Tex.App.-Texarkana 2001, pet. ref'd). In a suppression hearing, the trial court is the sole trier of fact and judge of the witnesses’ credibility and the weight to be given their testimony. The evidence should be viewed in the light most favorable to the trial court’s ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim. App.1999); Freeman, 62 S.W.3d at 886. We should afford almost total deference to the trial court’s determination of historical facts that the record supports, especially when the fact-findings are based on an evaluation of the witnesses’ credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000); Freeman, 62 S.W.3d at 886. Since the trial court did not make findings of fact or conclusions of law, we should assume that the trial court made implicit findings that support its ruling, so long as those implied findings are supported by the record, and should affirm the decision if the trial court's decision is correct on any theory of law applicable to the case. Ross, 32 S.W.3d at 855-56.

The State claims two justifications for this stop: (1) that Curtis was stopped pursuant to an observed traffic violation and (2) that Curtis was stopped on the officers’ reasonable suspicion of his intoxication. The officers stopped Curtis without a warrant, so the State bore the burden at the suppression hearing of demonstrating that the stop was reasonable within the totality of the circumstances. See Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App.1986); Bass v. State, 64 S.W.3d 646, 648 (Tex.App.-Texarkana 2001, pet. ref'd). To briefly stop and detain an individual for investigative purposes, an officer needs reasonable suspicion, supported by articulable facts, that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To justify a traffic stop, an officer must have observed specific, objective, articulable facts which, in light of the officer’s experience and personal knowledge, together with inferences from those facts, would warrant a reasonable person to believe a traffic violation had occurred. See Davis v. State, 947 S.W.2d 240, 242-43 (Tex.Crim.App.1997); Bass, 64 S.W.3d at 648.

Because we hold that Curtis’ stop is not supported by evidence (1) that Curtis was stopped pursuant to an observed traffic violation or (2) that Curtis was stopped on the officers’ reasonable suspicion of his intoxication, we reverse Curtis’ conviction.

(1) Curtis’ Stop Was Not Based on an Observed Traffic Violation

Curtis was stopped by probationary state trooper Thomas Anderson and Anderson’s trainer, state trooper John Williams. Both officers testified at the suppression hearing. Anderson first testified to the reason for their stop of Curtis:

Q. [the State] How did you encounter Kyle David Curtis that night?
A. [Trooper Anderson] Mr. Curtis was the driver of a vehicle that I observed not maintaining a single lane of traffic, swerving from lane to lane, and I stopped him for that violation.
Q. Okay. Is that a traffic violation according to the traffic code?
A. Yes.
Q. Was that the only reason you stopped him?
A. Yes.

Williams recalled a similar fact scenario:

Q. [Counsel for Curtis] Anderson says I observed a maroon Chevrolet SUV bearing this particular license plate in the inside lane of the east loop weave across the inside fog line, back on the inside lane, and back across the inside fog line again. The vehicle then weaved across the broken lane divider line and back. I count that as being three times he may have left the traffic lane. Is that consistent with your memory?
A. [Trooper Williams] Yes. I would define that as a considerable amount of weaving.
Q. Okay.
A. And if I might add, we’re only talking about a relatively short distance. We’re talking about several hundred yards as opposed to, let’s say, a quarter of a mile or so.
Williams said Curtis “just wasn’t doing a very good job of keeping the car in one lane at all.”
The Texas Transportation Code defines the appropriate conduct:
(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) (Vernon 1999) (emphasis added). Curtis contends that evidence of weaving, without evidence of the weaving being unsafe, is not itself sufficient to establish a traffic offense. The State does not address this contention on appeal. At the suppression hearing, the State took the position that weaving alone constituted the offense and that unsafe movement was not necessary to justify the traffic stop.

There is no evidence in the record to indicate that Curtis’ weaving, outside of its occurrence, was unsafe. Trooper Anderson testified that he did not recall traffic conditions and did not know the speed Curtis was driving. Anderson 'did state that there were no objects, items, obstructions, cones, people, or animals in the roadway at the time of the stop and that Curtis did not strike any object. When asked on cross-examination to explain how Curtis’ weaving was dangerous or unsafe, Anderson answered only that Curtis could-have hurt himself or others.

Q. ‘ [Counsel for Curtis] As far as the weaving across the fog line, how and— how was that particular action dangerous?
A. [Anderson] How was it dangerous?
Q. Yes, sir.
A. With other traffic on the roadway, he could have easily swerved into another vehicle and caused an accident.
Q. But there were no other vehicles at that time to your recollection. Is that right?
A. I do not remember how heavy the traffic was.
Q. And I don’t think your report mentions how heavy the traffic was either?
A. No.
Q. If I also asked you basically the same question how this particular action was unsafe, would your answer be the same?
A. Yes, sir. He could also easily lose control and wreck himself.

We note that the State has not attempted — at trial or on appeal — to justify the stop based on the community earetaking exception, that is, that Curtis was stopped because he might have been a danger to himself. The State argues only that safety is not an element of the alleged traffic offense of weaving out of the lane of travel, consistent with its redirect examination as follows:

Q. [State] Whenever you initiate a traffic stop, do you have to find a basis for someone’s driving being unsafe before you pull them over?
A. [Trooper Anderson] No.
Q. If someone is weaving inside and out of their lane, do you have to wait until they strike something to pull them over?
A. No.

The State similarly asked Trooper Williams, “Is weaving aíso a violation of the traffic code?” Williams answered, “If they weave across the fog line or across the broken center line from one lane to the other, yes, it is a violation.”

But merely weaving or swerving across a lane line is not, alone, a traffic violation. Eichler v. State, 117 S.W.3d 897, 900 (Tex.App.-Houston [14th Dist.] 2003, no pet.). The statute clearly states that a violation occurs when such movement is made without first ascertaining that “movement can be made safely.” “A violation occurs only when the vehicle fails to stay within its lane and the movement is not safe or is not made safely.” Hernandez v. State, 983 S.W.2d 867, 871 (Tex.App.-Austin 1998, pet. ref'd); see also Bass, 64 S.W.3d at 651 (“Because there is no evidence in this case the lane change was unsafe, there was no actual traffic violation.”).

Though the use of the word “unsafe” is not necessary to prove the element, the State must show that a person of reasonable caution would believe that, given the facts of the case and experiences related by the officer, the movement could not have been made safely. Eichler, 117 S.W.3d at 900 (referencing Aviles v. State, 23 S.W.3d 74, 77 (TexApp.-Houston [14th Dist.] 2000, pet. ref'd)). Those courts that have found unsafe weaving to raise a reasonable suspicion of the violation of Section 545.060 have so found when they were faced with weaving done in conjunction with other facts indicating danger, such as leaving a bar, driving in heavy traffic, crossing into a lane of oncoming traffic, or weaving over an extended distance or time. See, e.g., Tyler v. State, 161 S.W.3d 745 (Tex.App.-Fort Worth 2005, no pet.) (stopped after anonymous tip of erratic driving and weaving in heavy traffic on Thanksgiving weekend); Cook v. State, 63 S.W.3d 924 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (car speeding out of bar parking lot, suspiciously pulling into gas station for ten to fifteen seconds, then being driven “all over” two unmarked roads, before “constantly” crossing into other lane for about two minutes on marked lane-divided road); Griffin v. State, 54 S.W.3d 820 (TexApp.-Texarkana 2001, pet. ref'd) (after receiving informant tip that defendant would be carrying heroin, officer saw defendant’s car cross yellow line into lane of oncoming traffic); Martinez v. State, 29 S.W.3d 609 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd) (car drifted onto shoulder for only few seconds, but on freeway during busy traffic); Tex. Dep’t of Pub. Safety v. Bell, 11 S.W.3d 282 (Tex.App.-San Antonio 1999, no pet.) (car crossed into shoulder of lane of oncoming traffic); Gajewski v. State, 944 S.W.2d 450 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (on two-lane highway, one-third of car crossed into oncoming lane two to three times). Unlike the foregoing cases in which evidence of weaving was paired with evidence of other dangerous conduct or circumstances, there was no evidence here that Curtis crossed into a lane of oncoming traffic, interfered with heavy — or any — traffic on the road, or sustained his weaving for an extended length of time or distance. The only evidence on any of these matters is Trooper Williams’ testimony that Curtis was not weaving over an extended time or distance, but, rather, over “a relatively short distance.”

Curtis’ actions are more akin to those in which courts have not found reasonable suspicion of the violation of Section 545.060. See, e.g., State v. Huddleston, 164 S.W.3d 711 (Tex.App.-Austin 2005, no pet.) (officer saw car leave bar parking lot then slowly drift over fog line — by a few inches — five times over five to six miles while traveling one to eight miles per hour under speed limit); Eichler, 117 S.W.3d 897 (car crossed line between middle and fast lanes once on Interstate Highway 10 in light traffic at 12:30 a.m.); Bass, 64 S.W.3d at 648 (car swerved within and outside its lane over two and one-half to three miles and was passed by other vehicles); Corbin v. State, 33 S.W.3d 90, 93 (Tex.App.-Texarkana 2000), rev’d on other grounds, 85 S.W.3d 272 (Tex.Crim.App. 2002) (in course of twenty feet, defendant drove thirteen miles per hour under speed limit and crossed over fog line once before driving one mile with no further infractions); State v. Cerny, 28 S.W.3d 796 (Tex.App.-Corpus Christi 2000, no pet.) (car “just barely” swerved into shoulder of lane of oncoming traffic, then swerved over inside fog line three to four times); State v. Arriaga, 5 S.W.3d 804 (Tex.App.-San Antonio 1999, pet. ref'd) (van drifted toward center divider — but within lane — two to seven times near nightclub around 1:50 a.m.); Hernandez, 983 S.W.2d 867 (with few other vehicles around, car “broke the plane dividing the two lanes” or swerved into adjacent lane by eighteen inches to “couple of feet” at about 1:30 a.m.); State v. Tarvin, 972 S.W.2d 910 (Tex.App,-Waco 1998, pet. ref'd) (car drifted over outside fog line two to three times at 2:00 a.m. near nightclub).

Curtis weaved out of his lane only briefly, and only toward the shoulder and toward a lane of traffic designated for traffic traveling in the same direction. The State introduced no evidence of danger to anyone on the road, except possibly Curtis himself, and even then failed to argue the “community caretaking function” under Corbin, 85 S.W.3d 272. Following all of the above cases, especially Hernandez and Bass, we conclude there is no evidence that Curtis’ actions were unsafe. The evidence does not support a finding that the officers had a reasonable belief that, Curtis violated Section 545.060, because the evidence does not establish the lack-of-safety element in Section 545.060(a)(2) of the Texas Transportation Code. •

(2) Curtis’ Stop Was Not Based on Reasonable Suspicion that He Was Intoxicated

The State asserts that the troopers had both reasonable suspicion to continue an investigatory detention and probable cause to believe that Curtis was intoxicated after stopping him, and points' to all of the evidence of intoxication the officers gleaned after the traffic stop. That is not, however, the question at hand. Despite the State’s failure to argue the substantive issue, we will address the proper question on this portion of the motion to suppress: whether the evidence supports the reasonableness of the troopers’ belief, based just on the evidence that preceded the stop, that Curtis was intoxicated. This analysis will not look at the evidence obtained after the stop. Neither do we consider any evidence introduced at trial, but only the evidence before the trial court when it heard the motion to suppress. “On appellate review, we must examine the record as it existed at the time of the suppression hearing.” O’Hara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App.2000).

We are left with the question of whether Curtis’ observed driving, in the context in which it was observed, supports a reasonable suspicion of intoxication.

The State elicited the following testimony from Anderson:

Q. [State] As far as a reason why someone may or may not swerve, could someone swerving also be because they have lost the normal use of their mental and physical faculties?
A. [Anderson] Yes.
Q. And did you pull Mr. Curtis over to investigate your belief that this could be the case in his case?
A. Yes.

Curtis’ attorney addressed this new reason given for the stop on re-cross examination:

Q. [Counsel for Curtis] Trooper Anderson, I think you just answered our question about one of the reasons you pulled him over was to investigate further although that’s not what your initial testimony was, nor that’s what your report says. Isn’t it true that your report refers to you pulling him over for the observed violations is what the report says and what your earlier testimony was?
A. Yes, sir. There was an observed violation, but I also had a suspicion that it was intoxication. And I investigated that suspicion based on the probable cause of the traffic violation.

Although Anderson’s testimony is equivocal as to suspicion of D.W.I. as a basis of the stop, viewing the facts in the light most favorable to the ruling, we will address the sufficiency of the testimony that Anderson did pull Curtis over because he suspected intoxication. We note that neither officer testified that anything, other than the weaving itself, led him to suspect intoxication.

This Court addressed the sufficiency of the evidence of weaving, alone, as a basis of suspicion of intoxication in the Bass case. In that case, where the pre-stop weaving over a stretch of two to three miles was the only fact supporting suspicion of intoxication, we held “the State failed to carry its burden to show articula-ble facts that demonstrate the reasonableness of the stop on the basis of a suspicion” of intoxication. Bass, 64 S.W.3d at 650. Curtis’ weaving occurred over a much shorter stretch than did Bass’.

The Texas Court of Criminal Appeals, addressing an officer’s stop of a weaving driver under the community caretaking function, has noted that, “[gjiven the frequency with which the average driver occasionally strays over the side stripe of the road, we have difficulty even characterizing this behavior as ‘distress.’ ” Corbin, 85 S.W.3d at 277. “We cannot turn a blind eye to common sense and experience. There are myriad reasons why the wheels of a vehicle might drift slightly across a lane marker a single time.” Hernandez, 983 S.W.2d at 870. Trooper Anderson testified that there are numerous reasons why a person might swerve or weave, including diabetic coma, fatigue, switching the radio channel, or dropping a sandwich onto the floorboard. Nothing suggests why intoxication should be suspected over any other possible reason for Curtis’ weaving.

Because there is no evidence in the record that Curtis’ weaving was unsafe, or reasonable suspicion, based on articulable facts before the stop, of Curtis’ intoxication, we hold that the trial court abused its discretion in overruling Curtis’ motion to suppress. Because the answer to Curtis’ first point of error is dispositive, we decline to address his further points of error.

For the reasons stated, we reverse the trial court’s judgment and remand this case to the trial court for further proceedings consistent with this opinion. 
      
      . Here, one of the state troopers was comparing “several hundred yards” with "a quarter mile or so,” both estimations of distance. Of course, 440 yards are in a quarter mile. From the context, it appears the officer meant that Curtis’ driving was observed for something less than a quarter mile.
     
      
      . We find in the record no request for any findings or conclusions in connection with the trial court’s ruling on Curtis’ motion to suppress.
     
      
      . Anderson’s trainer referred to Anderson as both a "trooper trainee” and "probationary trooper.” Anderson graduated from the state trooper academy about three months before the encounter with Curtis.
     