OPINION Danny Daniel Martinez pleaded guilty to driving while intoxicated. On appeal, he contends the trial court erred in denying his motion to suppress the evidence against him because the arresting officer’s dashcam footage contradicts the officer’s stated reasons for making the traffic stop and refutes the factual findings necessary to support the trial court’s ruling that the officer reasonably suspected Martinez of driving while intoxicated when the officer made the traffic stop. We affirm. BACKGROUND The State charged Martinez with misdemeanor driving while intoxicated. See TEX. PENAL CODE § 49.04(a). Martinez moved to suppress the evidence, arguing that the arresting officer stopped him without reasonable suspicion. At the suppression hearing, two witnesses testified: D. Smiers and T. Trotti, both of whom are peace officers employed by the Deer Park Police Department. When Officer Smiers took the stand, he testified that he had been a peace officer for three-and-a-half years. He had spent the entirety of that time working on the patrol division’s night shift. As an officer assigned to the night shift, Smiers engages in “a lot of DWI enforcement,” for which he is trained. Smiers testified that he encountered Martinez while on patrol sometime around 1:40 a.m. Smiers suspected Martinez might be intoxicated after he saw Martinez strike the curb and veer outside his lane twice within a short time and distance. Smiers stated that Martinez’s erratic driving during the wee hours was an indicator that Martinez might have been drunk. According to Smiers, the four-lane road they were on was straight and level, without potholes or obstructions. The road was clearly marked, and its surface was dry. Traffic was light for the time of night. Smiers had driven on this road numerous times and was familiar with it. During Smiers’s testimony, the State introduced into evidence the footage from his dashcam. The footage shows Smiers approaching Martinez from behind in his patrol vehicle. But due to the distance between the two vehicles, limited nighttime visibility, glare from the headlights of oncoming traffic, and the quality of the footage, the footage does not definitively show whether Martinez struck the curb at any time before Smiers initiated the stop. The footage arguably seems to show Martinez veer outside his lane at least once beforehand. The footage also shows Martinez repeatedly hitting his brakes before Smiers initiated the stop. Defense counsel questioned Smiers about the inability to discern from the dashcam footage what Smiers described on the stand. Smiers said he understood the footage might not be clear, attributing this to the footage’s quality. Smiers testified that Martinez’s erratic driving was unsafe. Smiers conceded that Martinez did not pose an immediate danger to someone else, as no vehicle was nearby when Martinez veered outside his lane. But Smiers clarified that Martinez could have caused a collision with Smiers’s patrol vehicle, depending on the distance between the two vehicles. After Smiers had stopped Martinez, Smiers observed that Martinez had red glassy eyes, his speech was slurred, and he smelled of alcoholic drink. Martinez admitted to having drunk two alcoholic beverages. Smiers also stated that, after the stop, he saw scrape marks on Martinez’s passenger-side tires, consistent with Martinez having struck the curb. Officer Trotti testified that he arrived after Smiers had stopped Martinez. Like Smiers, Trotti saw the scrape marks on Martinez’s tires. The trial court denied Martinez’s motion to suppress. In doing so, the trial court relied on Smiers’s testimony that he had seen Martinez hit the curb twice even though the roadway was free of obstructions that would cause him to do so. The trial court also relied on Smiers’s and Trotti’s testimony that they observed scrape marks on Martinez’s passenger-side tires after the stop. After the trial court denied the motion to suppress, Martinez entered into a plea bargain with the State and pleaded guilty to the charged offense. The trial court certified his right to appeal the denial of his motion to suppress. DISCUSSION Martinez contends that Smiers did not reasonably suspect he was driving while intoxicated, thereby rendering the stop unlawful. Martinez maintains that Smiers’s dashcam footage contradicts the officer’s testimony such that the trial court erred in not disregarding Smiers’s testimony and in not granting Martinez’s motion to suppress. Martinez also argues that the trial court improperly relied on the evidence of scrape marks on his tires, which Smiers and Trotti saw only after the stop, in determining that Smiers had reasonable suspicion to make the stop. Standard of Review We review a trial court’s ruling on a motion to suppress for abuse of discretion. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018). But our review for abuse of discretion must take into account that a trial court’s suppression ruling is comprised of two distinct components: historical factual findings, which often turn on credibility evaluations, and legal conclusions, like whether a given set of facts gives rise to reasonable suspicion. State v. Mendoza, 365 S.W.3d 666, 669 (Tex. Crim. App. 2012). We almost totally defer to the trial court’s factual findings, as long as the record supports them. Cortez, 543 S.W.3d at 203. Factual matters include credibility evaluations and who did what, when, where, how, or why. Baird State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). But we review de novo questions of law as well as the trial court’s application of the law to the facts. Cortez, 543 S.W.3d at 203–04; Delafuente v. State, 414 S.W.3d 173, 177 (Tex. Crim. App. 2013). We review de novo these aspects of the trial court’s suppression ruling because a trial court has no discretion to misinterpret the law or misapply the law to a given set of facts. State v. Ballard, 987 S.W.2d 889, 893 (Tex. Crim. App. 1999). However, even if the trial court errs in its interpretation or application of the law, we will affirm the trial court’s suppression ruling if we conclude that the ruling is correct under any theory of law applicable to the case. Cortez, 543 S.W.3d at 203. Applicable Law The United States Constitution’s Fourth Amendment guarantees a citizen’s right to be free from unreasonable searches and seizures. Article I, Section 9 of the Texas Constitution guarantees this right as well. These constitutional guarantees cabin the exercise of authority by peace officers over their fellow citizens. See Johnson v. State, 912 S.W.2d 227, 233–34 (Tex. Crim. App. 1995) (plurality op.) (guarantee in Article I, Section 9 generally corresponds to Fourth Amendment). In reviewing whether police conduct comports with these guarantees, courts classify interactions between the police and the public into three categories: consensual encounters, which require no objective justification; investigatory detentions, which require reasonable suspicion; and arrests, which require probable cause absent an arrest warrant. See Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016). A traffic stop is an investigatory detention. Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim. App. 2017); Kothe v. State, 152 S.W.3d 54, 63–64 (Tex. Crim. App. 2004). Thus, when a peace officer makes a stop without a warrant, he must reasonably suspect the driver of some criminal activity. Delafuente, 414 S.W.3d at 176–77. This may include a traffic offense. Ramirez-Tamayo, 537 S.W.3d at 36. Reasonable suspicion is more than a hunch; it exists only when the officer has specific, articulable facts that, taken together with reasonable inferences from those facts, would lead him to reasonably conclude the driver is, has been, or soon will be engaged in criminal activity. Delafuente, 414 S.W.3d at 177. This standard is an objective one that turns on the totality of the circumstances. Id. The officer’s subjective intent is irrelevant. Ramirez-Tamayo, 537 S.W.3d at 36. Whether a given set of facts or circumstances, as properly found by the trial court, shows that a peace officer had reasonable suspicion to conduct a traffic stop is a question of law. Wade v. State, 422 S.W.3d 661, 669 (Tex. Crim. App. 2013). Analysis Smiers Reasonably Suspected Martinez of DWI before the Stop When a trial court makes explicit factual findings, whether written out and signed by the judge or dictated on the record, we examine the record in the light most favorable to its ruling and uphold its findings as long as the evidence supports them. Baird, 398 S.W.3d at 226; see also Mendoza, 365 S.W.3d at 670 (trial court’s factual findings may be made in signed writing or stated from bench and transcribed). Here, the trial court credited Smiers’s testimony that he saw Martinez strike the curb twice. The trial court also credited Smiers’s testimony that there was no reason for Martinez to strike the curb. Based on the totality of the circumstances, the trial court concluded that Smiers had a reasonable basis to stop Martinez to investigate whether he was driving in an unsafe manner because he was intoxicated or due to some other cause. The trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony during a suppression hearing. Hereford v. State, 339 S.W.3d 111, 118 (Tex. Crim. App. 2011). Thus, the trial court was entitled to credit Smiers’s testimony that Martinez struck the curb twice without any apparent reason for doing so. Id. And because the trial court’s factual findings on this subject are supported by the record, we must defer to them. Cortez, 543 S.W.3d at 203. The question then becomes a legal one: did the two curb strikes, when considered in the context of the circumstances as a whole, give Smiers cause to reasonably suspect Martinez might be drunk? On this record, we answer yes. The Court of Criminal Appeals has recognized that certain driving behaviors are sound indicia of drunk driving. Leming v. State, 493 S.W.3d 552, 564 (Tex. Crim. App. 2016). The exhibition of these behaviors gives peace officers an objectively reasonable basis for stopping a driver to investigate the possibility that the driver is intoxicated even though these behaviors might result from more innocent causes, like inadvertence or distraction. Id. at 564–65; see also James v. State, 102 S.W.3d 162, 172 (Tex. App.—Fort Worth 2003, pet. ref’d) (erratic driving behavior may give rise to reasonable suspicion of intoxication even without evidence that driver committed particular traffic offense). For example, when an officer sees a driver repeatedly weave in and out of his lane over a short distance late at night, this driving behavior provides a rational basis for the officer to suspect the driver may be intoxicated. Curtis v. State, 238 S.W.3d 376, 381 (Tex. Crim. App. 2007). Similarly, when an officer sees a driver strike the curb on a public roadway more than once in a short distance or time without apparent explanation, the officer may reasonably suspect the driver could be intoxicated. See Stoerner v. State, No. 01-99-00186-CR, 2000 WL 5058, at *1–2 (Tex. App.—Houston [1st Dist.] Jan. 6, 2000, pet. ref’d) (not designated for publication) (affirming trial court’s denial of motion to suppress when officer testified he suspected defendant of drunk driving after officer saw him strike curb twice while on patrol just before 1:00 a.m.); cf. State v. Smith, Nos. 05-11-00742–43-CR, 2012 WL 1059703, at *4 (Tex. App.—Dallas Mar. 30, 2012, pet. ref’d) (not designated for publication) (affirming trial court’s suppression of evidence when officer testified he suspected defendant of drunk driving after officer saw him strike curb once but other evidence indicated defendant had only struck curb to avoid debris in road). Indeed, one appellate court has held in a civil case that a driver’s near miss of a curb may give rise to a reasonable suspicion that the driver may be intoxicated. Tex. Dep’t of Pub. Safety v. Ardoin, 515 S.W.3d 910, 915 (Tex. App.—Eastland 2017, no pet.). And we have expressed agreement with that holding, albeit in a nonprecedential decision. See Perez v. State, No. 01- 18-00905-CR, 2019 WL 5792191, at *3 (Tex. App.—Houston [1st Dist.] Nov. 7, 2019, no pet.) (mem. op., not designated for publication) (citing Ardoin for proposition that “striking or almost striking curb” may give rise to reasonable suspicion for stop); see also Dyer v. State, No. 02-09-00422-CR, 2010 WL 5118348, at *3–5 (Tex. App.—Fort Worth Dec. 16, 2010, no pet.) (mem. op., not designated for publication) (evidentiary conflict as to whether defendant struck curb, which was sole basis officers had for reasonably suspecting intoxication, was sufficient to require jury instruction to disregard evidence if jury believed, or had reasonable doubt, that evidence of intoxication was obtained as result of unlawful stop). Deferring to the trial court’s factual findings that Martinez struck a curb twice and did so without apparent cause, we hold that Smiers had an objectively reasonable basis to stop Martinez to ascertain whether he was in fact intoxicated. See Stoerner, 2000 WL 5058, at *1–2; see also Perez, 2019 WL 5792191, at *3. In holding that Smiers had reasonable suspicion to stop Martinez, we emphasize that we do not rely on Martinez’s striking of the curb in a vacuum. A driver’s contact with a curb, standing alone, might not be enough to give rise to reasonable suspicion of intoxication in the absence of other suspect circumstances. See Graham v. State, No. 08-03-00315-CR, 2005 WL 182691, at *1–2 (Tex. App.— El Paso Jan. 27, 2005, no pet.) (not designated for publication) (reversing trial court’s denial of motion to suppress when officer testified without elaboration that he stopped defendant because she struck curb once for about two seconds and record lacked additional evidence that defendant may have been intoxicated). Here, however, Martinez struck the curb twice within a short distance and time. Repeated erratic driving behavior is inherently more suspect than a single lapse. See, e.g., Murrell v. State, No. 01-15-00200-CR, 2016 WL 2841201, at *4–5 (Tex. App.— Houston [1st Dist.] May 12, 2016, pet. ref’d) (mem. op., not designated for publication) (officer’s testimony that driver repeatedly accelerated and decelerated without apparent cause or explanation supported existence of reasonable suspicion). Moreover, several additional facts, which are undisputed on appeal, play a role in our analysis. Smiers, who was familiar with the road, testified that nothing suggested Martinez had good cause to hit the curb. The road was dry, clearly marked, and unobstructed. Furthermore, Smiers was trained in DWI enforcement, and had put this training to use in the field as an officer assigned exclusively to the patrol division’s night shift. He stated that erratic driving late at night or in the early hours of the morning in particular—he stopped Martinez around 1:40 a.m.—suggests the possibility of intoxication. Under the totality of these circumstances, a peace officer could have reasonably concluded, as Smiers did, that Martinez might be intoxicated. See, e.g., Foster v. State, 326 S.W.3d 609, 614 (Tex. Crim. App. 2010) (time of night and officer’s training and experience were relevant considerations in deciding that officer reasonably suspected defendant driving erratically could be intoxicated). Martinez posits that we must disregard Smiers’s testimony that Martinez twice struck the curb, and the trial court’s reliance on this testimony, due to Smiers’s dashcam footage. According to Martinez, this footage is indisputable visual evidence that he did not hit the curb because it does not show him doing so. Martinez argues that when, as here, indisputable visual evidence refutes the basis for a trial court’s factual finding, the appellate court owes no deference to the trial court. The Court of Criminal Appeals has explained that we generally must defer to the trial court’s factual findings even when it makes findings in a case in which a visual recording of a traffic stop is admitted into evidence at the suppression hearing. State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013). Though we may review de novo indisputable visual evidence, we must defer to the trial court’s factual findings as to what a given witness actually saw or heard unless the recording conclusively refutes the trial court’s finding. See id. at 570–74. In this instance, Smiers’s dashcam footage is not the kind of indisputable visual evidence that would allow us to disregard Smiers’s testimony that he saw Martinez strike the curb twice. Admittedly, the footage does not show that Martinez struck the curb. But the footage also does not refute that he did so. From our independent review of the footage, we conclude that it is not discernible whether Martinez struck the curb. The footage sheds no light on this matter. When, as here, a recording neither corroborates nor contradicts a witness’s testimony as to what he saw, the footage does not constitute indisputable visual evidence on the subject. See Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012) (indicating appellate court may disregard trial court’s factual finding when recording conclusively disproves testimony of officer on which trial court relied in making finding). Smiers indicated on the stand that the poor quality of his dashcam footage explained ostensible discrepancies between it and his testimony. Our independent review of the footage shows that the distance between Smiers’s and Martinez’s vehicles, limited nighttime visibility, and glare from the headlights of oncoming traffic contributed to the footage’s less than definitive character. On this record, the trial court’s decision to credit Smiers’s testimony that Martinez struck the curb essentially turned on an evaluation of Smiers’s credibility. And we must defer to the trial court’s credibility evaluations. Baird, 398 S.W.3d at 226. Thus, we reject Martinez’s position that we must discount Smiers’s testimony, and the trial court’s reliance on it, in our review of the trial court’s ruling. Trial Court’s Reliance on Tire Scrape Marks Was Improper but Harmless With respect to Martinez’s argument that the trial court erred in relying on evidence of scrape marks on Martinez’s passenger-side tires to find reasonable suspicion for the traffic stop, we agree with Martinez. But this error is harmless. It is undisputed that Smiers and Trotti saw the scrape marks only after Smiers stopped Martinez. Reasonable suspicion to conduct a traffic stop cannot be founded on facts that were unknown to an officer when he made the stop. Duran, 396 S.W.3d at 569–70. The trial court therefore erred in relying on this evidence in its ruling. However, Smiers reasonably suspected Martinez could be intoxicated based on Martinez’s erratic driving—striking the curb twice without apparent cause or explanation during the wee hours—without reference to the scrape marks. Therefore, Smiers’s traffic stop was an objectively reasonable one without reference to the evidence that there were scrape marks on Martinez’s passenger-side tires. When, as here, the remaining evidence supports a reasonable-suspicion determination after improperly considered evidence is discounted, the trial court’s reliance on the improperly considered evidence is harmless. See TEX. R. APP. P. 44.2(a) (constitutional error not reversible when appellate court determines beyond reasonable doubt that error did not contribute to conviction or punishment). CONCLUSION We hold that the trial court did not abuse its discretion in denying Martinez’s motion to suppress. We therefore affirm the trial court’s judgment. Gordon Goodman Justice Panel consists of Justices Kelly, Goodman, and Guerra. Publish. TEX. R. APP. P. 47.2(b).
