Jesse Aaron Wilkerson v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-24-00078-CR
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JESSE AARON WILKERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law No. 4
Montgomery County, Texas
Trial Cause No. 22-365189
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MEMORANDUM OPINION

Appellant Jesse Aaron Wilkerson (“Appellant” or “Wilkerson”) was charged

by information with the offense of driving while intoxicated with a blood or breath

alcohol concentration level of .15 or more, a misdemeanor offense. See Tex. Penal

Code Ann. § 49.04. Wilkerson pleaded guilty to the offense, and the trial court found

him guilty and sentenced him to three days in Montgomery County jail with credit

for time served and a fine of $1,000 and ordered that Wilkerson’s driver’s license be

suspended for 90 days. In a single issue on appeal, Wilkerson argues that the trial

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court abused its discretion by denying his motion to suppress. We affirm the

judgment as reformed.

Hearing on Motion to Suppress

Before trial, Wilkerson filed a Motion to Suppress 1 asking the trial court to

suppress all evidence seized or obtained without a warrant because law enforcement

lacked reasonable suspicion to believe that Wilkerson was engaged in criminal

activity. After a jury was selected and sworn, the trial court conducted a hearing on

the Motion to Suppress outside the presence of the jury.

The defense called Brit Lopez (“Lopez” or “the Trooper”) to testify. Lopez

testified that he works in criminal investigations with the Texas Department of

Public Safety, and he was the arresting officer in this case. Lopez testified that the

events that resulted in Wilkerson’s arrest began when Lopez saw a car sitting in a

dirt field shortly before midnight on March 22, 2022, and the car pulled out onto the

road. Lopez recalled that Wilkerson moved into the right turn lane and then turned

right onto another road. Lopez agreed that he saw Wilkerson’s vehicle head towards

the median, then hit the brake and “ma[k]e a maneuver to the right to avoid crashing

into the median[.]” According to Lopez, at some point Wilkerson pulled into a

parking lot, and Lopez turned on the lights of his patrol vehicle to make a traffic

1
Wilkerson also filed a “Motion to Suppress Statements,” which we do not
discuss because it is not at issue in this appeal. See Tex. R. App. P. 47.1.
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stop. Lopez agreed that Wilkerson had not committed a traffic violation, but Lopez

stopped Wilkerson based on reasonable suspicion.

On cross-examination, Lopez testified that he was suspicious when he saw

Wilkerson’s vehicle parked in a dirt field where cars do not normally park:

It was parked angled away from [the road] where I saw the taillights.
The time of night, being 11:45 at night, and my knowledge of that - - it
was parked next to storage units that I have knowledge [of] from my
work in the Magnolia area of being broken into at nighttime.
....
A lot of storage units in Montgomery County get broken into at
nighttime, as well as that one. I’ve been there for a suspicious person
call before where they observed people on cameras that they didn’t
appear to - - supposed to be there.
....
I didn’t know who was in the vehicle. I couldn’t tell how many times it
was occupied, if they were doing something illegal parked off in the
dark off the main roadway. Just any criminal activity that could have
been possible.

Lopez testified that he turned around to watch the vehicle and to see why it was

parked in a dirt field with no lights on and no lights in the area because in five years

of law enforcement, Lopez had not seen anyone park in the middle of that field.

Lopez recalled that later, when he was following the car, he saw the car make “an

erratic swerve away from [the] inner median and the[n] overcorrect[] and then

swerve[] from going off the roadway.” Lopez testified that he became suspicious

because “that’s not a normal driving behavior for a vehicle to make[,]” based on his

knowledge that DWIs are more likely at night, and because the car turned into a mini

strip center where the businesses were closed. Lopez stated, “it didn’t make sense
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why the vehicle would leave a dirt lot and then enter a business that also backs up to

the [storage units] that[] [were] closed with no reason to be there.” Lopez testified

that he had reasonable suspicion that criminal activity was occurring or may have

occurred.

On redirect examination by the defense, Lopez agreed that his offense report

stated he had reasonable suspicion for the traffic stop, but that the report did not say

“criminal activity,” nor did it specify a traffic violation, and he testified that his

reasonable suspicion was based on the totality of the circumstances including

parking in a dirt field for an unknown reason and swerving while driving. Lopez

testified about his offense report as follows:

I start off with the report with a vehicle being parked out in a dirt lot that
- - that’s not normally traffic - - there’s no - - no one goes out there, so
that’s why I turned around on the vehicle. So, it’s stated right there. And
then the swerving further. I didn’t know if they were distracted, if they
were trying to - - maybe they were out there smoking dope and they
were trying to hide dope when I got behind them. I don’t know. But the
swerving just led on top of that for me to stop them.

Lopez agreed that Exhibit 2 is a fair and accurate representation of events on

the night of Wilkerson’s arrest, and the exhibit is titled “Dash Camera.” The video

exhibit was admitted during cross-examination of Lopez and played for the trial

court. The video shows Wilkerson’s car swerving in the road before turning into a

parking lot and stopping next to a dentist’s office, and Wilkerson is unsteady on his

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feet when he gets out of his car. Wilkerson is also heard saying, “I shouldn’t have

been drinking and driving.”

After Lopez testified and the State and defense presented arguments to the

trial court, the trial court found that Trooper Lopez had identified specific articulable

facts to support reasonable suspicion, and the trial court denied the motion to

suppress.2 Following the hearing on the motion to suppress, Wilkerson pleaded

guilty and elected for the trial court to assess punishment. After a hearing on

punishment, the trial court assessed punishment at 3 days-time served in jail and a

fine of $1,000 and a 90-day suspension of his driver’s license. Wilkerson timely

appealed.

Issue

In a single issue, Wilkerson argues that the trial court abused its discretion by

denying his motion to suppress. Wilkerson argues that Trooper Lopez lacked

reasonable suspicion to support the warrantless traffic stop. According to Wilkerson,

Trooper Lopez’s testimony that Wilkerson could have been driving while impaired

or distracted or was possibly engaged in a break-in was “mere conjecture[]” and was

not supported by specific and articulable facts demonstrating a reasonable suspicion

that Wilkerson was engaging in criminal activity. Wilkerson argues that the

2
After the trial court announced its ruling, the defense argued another motion
to suppress based on an alleged failure to produce evidence that the trial court denied
and which is not at issue in this appeal.
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Trooper’s testimony amounts to no more than an “inchoate and unparticularized

suspicion or hunch[]” that does not meet the requirements for reasonable suspicion

under Terry v. Ohio, 392 U.S. 1, 27 (1968).

Wilkerson challenges three observations Lopez claimed supported his

decision to make a traffic stop: (1) Wilkerson stopped briefly in a dirt lot next to a

storage unit business; (2) Wilkerson swerved within a lane to avoid what Wilkerson

describes as “a poorly marked median[;]” and (3) Wilkerson pulled into a strip center

where no businesses were open. According to Wilkerson, none of these observations

standing alone is evidence that rises to the level of reasonable suspicion that

Wilkerson was engaged in criminal activity. Wilkerson also argues that, taken

together and considering the totality of the circumstances, the cumulative force of

these observations also does not amount to reasonable suspicion of criminal activity.

Wilkerson further argues that Trooper Lopez gave conflicting testimony about

whether a single evasive driving maneuver by Wilkerson suggested that Wilkerson

might be impaired or distracted. According to Wilkerson, the trial court abused its

discretion in granting the motion to suppress and reversal is required.

Standard of Review and Applicable Law

We apply a bifurcated standard of review when reviewing a trial court’s ruling

on a motion to suppress. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App.

2019). Where, as here, a trial court does not make explicit findings, we review the

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evidence in a light most favorable to the trial court’s ruling and assume that the trial

court made implicit findings of fact supported in the record that support its

conclusion. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010)

(citing Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006)). In a motion

to suppress hearing, the trial court is the sole trier of fact and judge of the witnesses’

credibility and weight to be afforded testimony. See id. Therefore, we defer almost

totally to a trial court’s determinations of historical fact, so long as such

determinations are supported by the record, and we also defer to the trial court’s

rulings on mixed questions of law and fact that hinge on credibility and demeanor.

Martinez, 570 S.W.3d at 281. We apply a de novo standard of review to the trial

court’s rulings on pure questions of law or mixed questions of law and fact that do

not hinge on credibility or demeanor. State v. Espinosa, 666 S.W.3d 659, 667 (Tex.

Crim. App. 2023). “The evidence and all reasonable inferences are viewed in the

light most favorable to the trial court’s ruling, and the trial court’s ruling must be

upheld if it is reasonably supported by the record and is correct under a theory of

law applicable to the case.” Id. (citing Villarreal v. State, 935 S.W.2d 134, 138 (Tex.

Crim. App. 1996)).

A warrantless traffic stop is analogous to a temporary detention, and it may

be justified when the officer has “reasonable suspicion.” State v. Hardin, 664 S.W.3d

867, 872 (Tex. Crim. App. 2022) (citing Derichsweiler v. State, 348 S.W.3d 906,

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914 (Tex. Crim. App. 2011)). “[A] law enforcement officer’s reasonable suspicion

that a person may be involved in criminal activity permits the officer to stop the

person for a brief time and take additional steps to investigate further.” Hiibel v.

Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 185 (2004). Reasonable suspicion requires

more than a hunch, and it exists if the officer has specific articulable facts that,

combined with rational inferences from those facts, would lead the officer to

reasonably conclude the person is, has been, or soon will be engaged in criminal

activity. Hardin, 664 S.W.3d at 872 (citing Castro v. State, 227 S.W.3d 737, 741

(Tex. Crim. App. 2007)); Delafuente v. State, 414 S.W.3d 173, 177 (Tex. Crim. App.

2013). These facts must show unusual activity, some evidence that connects the

detainee to the unusual activity, and some indication that the unusual activity is

related to a crime. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013)

(citing Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011)).

When determining whether reasonable suspicion exists to support a

warrantless detention, we consider the totality of the circumstances, and reasonable

suspicion may exist even if those circumstances standing alone may be just as

consistent with innocent activity as with criminal activity. Hardin, 664 S.W.3d at

872 (citing Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007)); Kerwick,

393 S.W.3d at 274 (citing York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App.

2011)). In formulating reasonable suspicion, a police officer can draw on his own

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experience and specialized training. Johnson v. State, 622 S.W.3d 378, 385 (Tex.

Crim. App. 2021) (citing Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim.

App. 2017)). The officer making the traffic stop does not need to be able to identify

a specific criminal infraction. See id. at 384 (citing Derichsweiler, 348 S.W.3d at

916); see also McGrew v. State, No. 09-16-00424-CR, 2017 Tex. App. LEXIS 9328,

at *9 (Tex. App.—Beaumont Oct. 4, 2017, pet. ref’d) (mem. op., not designated for

publication) (citing Derichsweiler, 348 S.W.3d at 916).

Whether the facts known to a police officer at the time of the stop amount to

reasonable suspicion of criminal activity is a mixed question of law that we review

under a de novo standard of review. Kerwick, 393 S.W.3d at 273. The test for

reasonable suspicion is an objective one that focuses solely on whether an objective

basis exists for the detention and disregards the officer’s subjective intent. Id. at 274

(citing Terry, 392 U.S. at 21-22; York, 342 S.W.3d at 536).

Analysis

In this case, Trooper Lopez testified that his decision to stop Wilkerson was

based upon his observations and his training and experience, including his

knowledge of the area where Wilkerson was located that night. Lopez testified that

he first noticed Wilkerson’s car at about midnight, parked in a dirt field near storage

units where Lopez had never seen anyone park and where there were no lights. Lopez

also testified that he knew those storage units had experienced break-ins at night.

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Lopez testified that he then observed Wilkerson’s car pull out onto the roadway and

make an “erratic swerve” in traffic and then overcorrect. Exhibit 2, the dash camera

video from Lopez’s patrol vehicle, is consistent with Lopez’s testimony. Lopez

further testified that he then observed Wilkerson’s vehicle pull into a retail parking

lot next to a dentist’s office where none of the businesses were open. Lopez testified

that he was suspicious because Wilkerson’s behavior was also consistent with a

driver who may be intoxicated from drugs or alcohol. Lopez also explained he could

not see who was inside the car, and he was aware of a history of nighttime break-ins

at the storage units, and DWIs are more common at night.

Any alleged inconsistencies in Trooper Lopez’s testimony were for the trial

court to weigh in its role as factfinder. See Valtierra, 310 S.W.3d at 447. Based on

the totality of the circumstances and viewing the evidence in a light most favorable

to the trial court’s ruling, we conclude that Trooper Lopez explained specific

articulable facts that, combined with rational inferences from those facts, would lead

the officer to reasonably conclude Wilkerson had been or was or would soon be

engaged in criminal activity and that Lopez had provided a reasonable suspicion

sufficient to justify his initial stop and temporary detention of Wilkerson. See, e.g.,

Guerra v. State, 432 S.W.3d 905, 912 (Tex. Crim. App. 2014) (concluding that facts

known to the law enforcement officer provided reasonable suspicion sufficient to

justify the initial stop and temporary detention of the defendant). Trooper Lopez

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testified to specific articulable facts that, combined with rational inferences from

those facts, would lead Lopez to reasonably conclude Wilkerson was, had been, or

soon would be engaged in criminal activity. See Espinosa, 666 S.W.3d at 667;

Hardin, 664 S.W.3d at 872. Lopez was not required to identify a specific criminal

infraction or traffic violation to support reasonable suspicion to stop Wilkerson. See

Johnson, 622 S.W.3d at 384; Derichsweiler, 348 S.W.3d at 916; McGrew, 2017 Tex.

App. LEXIS 9328, at *9. Lopez’s testimony reflects that he observed unusual

activity by Wilkerson that gave some indication that the unusual activity was related

to a crime. See Kerwick, 393 S.W.3d at 273. We conclude that the trial court did not

err by denying Wilkerson’s motion to suppress. See Espinosa, 666 S.W.3d at 667.

That said, we note that a section of the judgment includes “Plea to 1st

Enhancement Paragraph: TRUE” and “Findings on 1st Enhancement Paragraph:

TRUE[.]” The information under which Wilkerson was charged did not allege an

enhancement, and the proceedings do not reflect that the State alleged an

enhancement nor that the trial court made a finding of “true” to any prior convictions.

This Court has the authority to reform the trial court’s judgment to correct clerical

errors. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.

Crim. App. 1993). We therefore reform the trial court’s judgment to delete “TRUE”

and substitute “N/A” to both the “Plea to 1st Enhancement Paragraph” and “Findings

on 1st Enhancement Paragraph.”

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Having overruled Appellant’s sole appellate issue, we affirm the trial court’s

judgment as reformed.

AFFIRMED AS REFORMED.

LEANNE JOHNSON
Justice

Submitted on December 4, 2024
Opinion Delivered December 18, 2024
Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.

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