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Click here for the full text of this decision FACTS:Just after midnight on June 8, 2006, Officer Margarito Perales watched Kevin Patrick Doyle weave from his lane to the opposing lane and back while driving on Taft Street in the Montrose area of Houston. Perales testified that traffic was heavy and that he had to stop his patrol car to avoid a head-on collision with Doyle. Perales testified that when he stopped Doyle, he noticed that Doyle had glassy, red, bloodshot eyes, had slurred speech, and smelled like alcohol. Doyle, who was a wine distributor, told Perales that he had two glasses of wine that night at a friend’s house. Perales asked Doyle to step out of his vehicle and to perform field sobriety tests and Doyle agreed. Perales administered the one-leg stand, the horizontal-gaze-nystagmus, the walk-and-turn and the Rhomberg tests. Perales observed six of six clues for intoxication in Doyle using the horizontal-gaze-nystagmus test, three of four clues for intoxication using the one-leg stand test, including loss of balance and swaying, and six of eight clues using the walk-and-turn test, including, again, swaying and loss of balance. In addition, Perales administered the Rhomberg test, during which Doyle was asked to estimate when 30 seconds had elapsed. Doyle missed the mark by 10 seconds, estimating 30 seconds had elapsed when, in fact, 40 seconds had elapsed. Based on these field-sobriety tests, Perales concluded that Doyle was intoxicated. Perales arrested Doyle and took him to the police station, where Doyle repeated and failed several field-sobriety tests and registered 0.19 breath alcohol content after agreeing to take the Intoxilyzer test. Doyle testified at trial, saying that: he was not intoxicated that night, only nervous and tired; he drank only two glasses of wine that night and two tasting-samples earlier in the evening; and he did weave, but only to avoid parked cars on the narrow street. He said he did not come close to hitting Perales’ patrol car, and he noted that there are no lane markings on that part of Taft Street, saying, “It’s hard to say whose lane you’re in.” On cross-examination, Perales also said that there was no dividing line in the street. On the day of trial, Doyle filed a motion to suppress, alleging that Perales lacked reasonable suspicion to stop him. After Perales testified, the trial court denied the motion to suppress. In addition, Doyle objected to the charge and requested an instruction about the alleged factual dispute regarding Perales’ stop of Doyle. Finding no factual dispute, because Doyle’s testimony failed to controvert Perales’ testimony regarding Doyle’s weaving, the trial court refused to include the requested instruction. Doyle challenged the trial court’s denial of his motion to suppress and of his requested jury instruction. HOLDING:Affirmed. Because it is undisputed that Perales stopped Doyle without a warrant, the state bore the burden to prove the reasonableness of the warrantless detention. The state argued that the stop was justified, because Perales testified that he witnessed Doyle commit a traffic violation. An officer may stop a driver if he has reasonable suspicion that a traffic violation was in progress or had been committed. Perales testified that he stopped Doyle, because he weaved into the opposing lane of traffic. The trial court found that by weaving in traffic, Doyle violated Texas Transportation Code �545.060. Perales testified that Taft Street did not have clearly marked lanes, so the court disagreed with the trial court that Perales witnessed a violation of �545.060. On appeal, the state argued that �545.051 justified the traffic stop. Section 545.051 provides that a driver on a “roadway of sufficient width shall drive on the right half of the roadway” unless passing another vehicle or avoiding an obstruction. Section 545.051 further requires a driver avoiding an obstruction to yield the right of way to a vehicle that is moving in the proper direction on the unobstructed portion of the roadway and that is an immediate hazard. As a factual matter, the trial court found that Perales watched Doyle weave into the opposing lane of traffic. Perales testified that he was moving in the opposite direction of the road from Doyle and that he had to stop his patrol car to avoid a head-on collision. Applying the law to these facts, the court concluded that Perales had reasonable suspicion that Doyle had violated �545.051. The court held that the trial court did not abuse its discretion in denying Doyle’s motion to suppress. In his second issue, Doyle contended that he was entitled to a jury instruction under Texas Code of Criminal Practice Art. 38.23 regarding whether Doyle failed to maintain a single lane while driving or weaved into the oncoming lane. The exclusionary rule of Art. 38.23 proscribes admissibility of evidence against an accused in a criminal trial if the evidence was “obtained by an officer or other person in violation of the laws or constitutions of Texas or the United States.” The trial court properly refuses such an instruction, the court stated, if the facts concerning how the evidence was obtained are not in dispute. At the charge conference in this case, the court noted, Doyle objected to the lack of an instruction regarding the stop of his car, specifically whether or not he was weaving or failed to maintain a single lane. Both Perales and Doyle testified that Doyle weaved into the lane of oncoming traffic. While Doyle explained that he did so to avoid a parked car, he did not dispute the reason why Perales stopped him, i.e., because he was weaving. Because there was no factual issue in dispute regarding Perales’ stop of Doyle, the court held that the trial court did not err in refusing Doyle’s requested jury instruction. OPINION:Nuchia, J.; Nuchia, Hanks and Higley, JJ.

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