author: REX D. DAVIS, Justice.

text:
    Joelle OGLETREE, Appellant, v. GLEN ROSE INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 10-08-00392-CV.
    Court of Appeals of Texas, Waco.
    Feb. 10, 2010.

      E. Ashley Goodwin, Anderson + Jones PLLC, Dallas, for Appellant.
    Thomas E. Myers, Brackett & Ellis PC, Fort Worth, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

REX D. DAVIS, Justice.

After she was terminated from her teaching job at Glen Rose High School, Joelle Ogletree sued the Glen Rose Independent School District. The trial court initially sustained the District’s plea to the jurisdiction, and in an earlier appeal, we reversed in part and affirmed in part that ruling, holding that the District did not have sovereign immunity as to Ogletree’s breach of contract and section 1983 claims. See Ogletree v. Glen Rose ISD, 226 S.W.3d 629 (Tex.App.-Waco 2007, no pet.). On remand, the District moved for summary judgment, which the trial court granted. Raising three issues, Ogletree appeals. We will affirm.

The District moved for summary judgment on the following grounds: (1) on her breach of contract claim, Ogletree was an at-will employee who therefore had no right to termination only for “good cause” or right to due process; (2) on her breach of contract claim, Ogletree failed to exhaust her administrative remedies for the trial court to have jurisdiction; and (3) Ogletree’s section 1983 claim is barred by the statute of limitations. Without stating the reasons, the trial court granted the motion and dismissed Ogletree’s two claims.

We review a trial court’s summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). In reviewing a summary judgment, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). We must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the motion. See id. at 756.

We begin with Ogletree’s second issue, which asserts in part that the trial court erred in granting summary judgment because there is a fact issue on whether Ogletree’s employment contract was a fixed-term employment contract and was not at-will, thus requiring the District to have good cause for termination and to afford her due process.

The summary judgment evidence shows that Ogletree taught French and English at Glen Rose High School in the 2000-01 and 2001-02 school years under “Chapter 21” teaching contracts. In a letter dated January 29, 2002, Ogletree gave notice that she would be resigning at the end of the school year to stay at home with her daughter. In the summer of 2002, John Bailey, then-Superintendent of the District, asked Ogletree to come back to work to teach French. Ogletree informed him that she would teach but only wanted to teach parttime and did not want to attend in-service days. As a result, and at Ogle-tree’s request, Bailey sent Ogletree a letter dated August 1, 2002:

This letter is to confirm our agreement regarding your employment with GRISD. As agreed, you will be a long-term sub working 178 days at $128.06 per day. Your assignment will be Flags, French II and French III.

Thereafter, on August 19, 2002, Ogletree signed the following form “Letter of Reasonable Assurance” from Bailey:

Dear Substitute:
This letter provides notice of reasonable assurance of continued employment with the district for the school year 2002-2003, when each school term resumes after a school break.... Please note that this letter is not a contract or guarantee of employment.
Nothing contained herein construes an employment contract. Your continued employment is on an at-will basis. At-will employers may terminate employees at any time for any reason or for no reason, except for legally impermissible reasons. At-will employees are free to resign at any time for any reason or no reason.
Please complete the following information. ... Failure to sign and return this form will keep you off the substitute list.

Based on allegations of sexual misconduct with a student, on the evening of October 1, 2002, Jeff Harris, the Principal of Glen Rose High School, telephoned Ogletree at home to tell her that she was being placed on administrative leave. According to Ogletree’s affidavit, on October 3, 2002, Harris telephoned Ogletree at home and terminated her. Ogletree said that she asked Harris if she would be able to tell her side or if “there would be hearing from” [sic ] her, but Harris never gave her a full idea of the allegations or how to defend herself. Ogletree also spoke with Bailey that day, and she asked him about being able to give her side. Bailey told her it was a “final decision.” Bailey’s affidavit states that Ogletree called him that day to discuss his decision and that she set up an appointment to meet with him on October 4, but she called back to cancel the appointment, “saying it was on her attorney’s advice.” In his deposition, Bailey said that he offered Ogletree “an opportunity for her to come talk to me and she chose not to,” although he admitted that the decision to terminate her was final and nothing she could have told him would reverse the decision. Bailey did not send her written information on the way to request a hearing.

In a letter to Bailey dated December 11, 2002, and received by Bailey on December 12, Ogletree’s attorney stated the she “appeals her discharge” and requests a closed-session hearing, but the District did not respond.

We assume without deciding that there is a fact issue on whether Ogletree’s employment contract was a fixed-term employment contract and was not at-will and will proceed to whether summary judgment was proper because Ogletree failed to exhaust her administrative remedies. Our initial opinion summarized the law in that area:

“[A] plaintiffs failure to exhaust administrative remedies may deprive courts of subject matter jurisdiction in the dispute.” Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex.1998) (per curiam); see Matagorda County Appraisal Dist. v. Coastal Liquids Partners, L.P., 165 S.W.3d 329, 331 (Tex.2005); Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 354 (Tex.2005); Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 361 (Tex.2004). “[Ejxhaustion of administrative remedies generally requires compliance” with administrative procedures. Van Indep. Sch. Dist. at 354. “[A] party must exhaust administrative remedies as a prerequisite to a trial court’s jurisdiction in a case involving the administration of school laws and disputed fact issues.” Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 698 (Tex.App.-Waco 2002, pet. withdrawn) (citing Tex. Educ. Agency v. Cypress-Fairbanks I.S.D., 830 S.W.2d 88, 90 (Tex.1992)); see Tex. Educ.Code Ann. § 7.057 (Vernon 2006); Van Indep. Sch. Dist. at 354. “[T]he doctrine of exhaustion of administrative remedies” applies “to the school employment context.” Vela at 701; see Van Indep. Sch. Dist. at 354. “[A] teacher’s claim of breach of his teaching-employment contract involves the administration of school laws and disputed fact issues, and thus, the teacher [i]s required to exhaust ... administrative remedies ... before looking to the courts for relief.” Vela at 701 (citing Godley Indep. Sch. Dist. v. Woods, 21 S.W.3d 656, 660 (Tex.App.-Waco 2000, pet. denied)).

Ogletree, 226 S.W.3d at 632.

In its summary-judgment evidence, the District included a statement signed by Ogletree on July 31, 2000 that she received a copy of the District’s grievance policy and appropriate forms. The statement is on a form that notes: “For clarification, a grievance does not become a formal grievance until it is put in writing and properly filed with the immediate supervisor.” Also in the record is the District’s grievance policy DGBA (LOCAL), which the District contends applies to a non-Chapter 21 contract teacher, which is what Ogletree contends she was under Bailey’s August 1, 2002 letter. That policy provides a three-step process, beginning with a written grievance within fifteen days:

An employee who has a grievance shall request a conference with the principal or immediate supervisor by submitting the grievance in writing on a form provided by the District. The form must be filed within 15 days of the time the employee first knew or should have known of the event or series of events about which the employee is complaining.

Ogletree’s attorney’s December 11, 2002 written request was untimely. She contends, however, that under another grievance policy, the District should have given her a hearing without her request. But that specific policy (DCE (LEGAL)), even if we agreed with Ogletree’s construction, applies to written contracts for non-educators.

Ogletree further contends that her failure to timely exhaust her administrative remedies is excused because such exhaustion would have been futile, citing Bailey’s response to Ogletree that the decision to terminate her was final and his testimony that nothing she said could have changed his decision. Futility is a recognized exception to the exhaustion of administrative remedies requirement. See Smith v. Blue Cross & Blue Shield United of Wis., 959 F.2d 655, 659 (7th Cir.1992); see also Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592, 606 (5th Cir. 2007); Gardner v. School Bd. Caddo Parish, 958 F.2d 108, 111-12 (5th Cir.1992). To come under the futility exception, a claimant must show that it is certain that the claim will be denied on appeal. Smith, 959 F.2d at 659.

The District correctly notes that, under the three-step process, Ogletree could have appealed her grievance to the District’s Board of Trustees, and then to the Texas Education Commissioner, followed by judicial review. See Tex. Educ. Code Ann. § 7.057 (Vernon Supp. 2009). Ogletree had the burden of demonstrating futility, but she only claims and presented evidence that an appeal to the superintendent would have been futile. Cf. Gardner, 958 F.2d at 112. By not even alleging that an appeal to the school board or the state commissioner would have been futile, she cannot demonstrate futility. Cf id. We thus hold that Ogletree failed to exhaust her administrative remedies as a matter of law and that the trial court lacked jurisdiction over her breach of contract claim. Summary judgment and dismissal were proper on this ground, and we overrule that part of her second issue.

Ogletree asserts that the trial court erred in granting summary judgment on the District’s ground that Ogletree’s section 1983 claim is barred by the statute of limitations. The parties agree that the statute of limitations on a section 1983 claim is two years. See Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (Vernon Supp. 2009); Price v. City of San Antonio, 431 F.3d 890, 892 (5th Cir.2005). But they disagree when Ogletree’s section 1983 claim accrued.

Federal law determines when Ogletree’s section 1983 claim accrued. Helton v. Clements, 832 F.2d 332, 334 (5th Cir.1987). Generally, a cause of action accrues the moment the plaintiff knows or has reason to know of the injury that is the basis of her complaint. Id. at 335. The statute of limitations begins to run from the moment the plaintiff becomes aware that she has suffered an injury or has sufficient information to know that she has been injured. Id. In a section 1983 wrongful discharge action, the statute of limitations begins to run on the date of termination. See id. (conspiracy allegations did not extend time for limitations to begin to run); see also Frazier v. Garrison ISD, 980 F.2d 1514, 1521-22 (5th Cir.1993) (holding that when employment discrimination claim is based on discharge, the discharge itself is basis for discrimination suit and begins limitations period).

Ogletree argues that the statute of limitations did not begin to run until she learned of the alleged gender discrimination, i.e., when she later learned that a male teacher was allegedly treated differently upon substantially similar allegations of sexual misconduct with a student. However, well-established Fifth Circuit precedent in employment discrimination eases directly contradicts Ogletree’s position. See Chapman v. Harnco, Inc., 886 F.2d 756, 758 (5th Cir.1989) (holding that limitations period on employment discrimination claim triggered on date of discharge, not on date of discovery of discriminatory intent); Merrill v. Southern Methodist Unir., 806 F.2d 600, 605 (5th Cir.1986) (same); see also Anderson v. City of Dallas, 111 F.8d 892 (5th Cir.1997) (per curiam) (same); Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir.1992) (same) (“To allow plaintiffs to raise employment discrimination claims whenever they begin to suspect that their employers had illicit motives would effectively eviscerate the time limits prescribed for filing such complaints.”).

Ogletree relies solely on a non-employment case to support her accrual argument. See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.2001); Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir.1995).

Accrual of a § 1983 claim is governed by federal law: “Under federal law, the [limitations] period begins to run ‘the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.’ ” Russell v. Bd. of Trustees, 968 F.2d 489, 493 (5th Cir.1992) (quoting Helton v. Clements, 832 F.2d 332, 335 (5th Cir.1987)), cert. denied, 507 U.S. 914, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993). A plaintiffs awareness encompasses two elements: “(1) The existence of the injury; and (2) causation, that is, the connection between the injury and the defendant’s actions.” Piotrowski, 51 F.3d at 516.

Piotrowski, 237 F.3d at 576. Piotrowski involved allegations that the Houston Police Department took affirmative steps to suppress information that it knew someone was going to try to kill the plaintiff. Id. at 576-77. The court noted fraudulent concealment, a well-recognized exception that tolls the statute of limitations (or delays accrual of the cause of action), and that the City did not object to a jury question on whether the plaintiff knew or should have known of the causal connection between her injuries and the defendant’s actions. See id. at 577 & n. 13. In this case, Ogletree makes no fraudulent concealment allegation, and she fails to persuade us that Piotrowski, an unusual and factually inapposite case, controls accrual of her section 1983 discrimination claim, rather than the employment cases cited above.

Ogletree was terminated on October 3, 2002. The two-year limitations period expired on October 3, 2004. She did not file her section 1983 claim until April 27, 2005. Because the District established that it was entitled to summary judgment on Ogletree’s section 1983 claim based on its statute of limitations defense, we overrule that part of Ogletree’s second issue.

Having found that the trial court properly granted the District’s summary judgment motion on Ogletree’s failure to exhaust her administrative remedies and the statute of limitations, we need not address her first and third issues and the remainder of her second issue. See Tex.R.App. P. 47.1. We affirm the trial court’s judgment.


source: Caselaw Access Project

author: TOM GRAY, Chief Justice.

license: Public Domain

text:
    MCLENNAN COUNTY and Ray Meadows, Appellants, v. Randolph VEAZEY and Debra Veazey, Appellees.
    No. 10-08-00324-CV.
    Court of Appeals of Texas, Waco.
    March 10, 2010.

      C. Alfred MacKenzie and Michael W. Dixon, Haley & Olson PC, Waco, for Appellants.
    Vance Dunnam and Christie L. Ryan, Dunnam & Dunnam LLP, Waco, for Ap-pellees.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

TOM GRAY, Chief Justice.

Randolph and Debra Veazey sued McLennan County and Ray Meadows both in his individual and official capacity pursuant to the Texas Tort Claims Act for damage done to a house the Veazeys were having moved. The County and Meadows filed a plea to the jurisdiction and an alternative motion for summary judgment. The trial court granted the summary judgment as to Meadows in his individual capacity. In the same order, the trial court denied the plea to the jurisdiction and alternative motion for summary judgment as to the County and Meadows in his official capacity. The County and Meadows appeal that portion of the order.

On appeal, the County and Meadows argue that governmental immunity was not waived regarding the Veazeys’ cause of action. Because the trial court erred in denying the plea to the jurisdiction, we reverse the trial court’s order and render judgment dismissing the Veazeys’ claims.

BACKGROUND

The Veazeys hired a house mover. While moving a portion of the house along a McLennan County road, forward progress was blocked by trees along the sides of the road. Efforts to remove the house from obstructing the road caused damage to the house, and ultimately, the house was destroyed to clear the road.

The Veazeys sued Ray Meadows and McLennan County. The suit against Meadows, an elected McLennan County Commissioner, is against him in both his individual and in his official capacity. The suit against McLennan County is brought solely due to the actions of Meadows in his official capacity.

The suit alleges that Meadows was in charge of the efforts to clear the road of the house. It is further alleged that Meadows was negligent in the manner in which he ordered the house to be moved. Specifically, the Veazeys claim that although he did not actually operate the wrecker used to move the house backwards nor did he actually attach the wrecker winch-line (cable) to the beams on which the house was being moved, the wrecker company employee was following Meadows’s instructions to the extent that it was effectively Meadows’s operation and use of the wrecker. By these allegations, the Veazeys attempt to bring themselves within the narrow waiver of governmental immunity when property damage is caused by a government employee’s use or operation of a motor-driven vehicle or motor-driven equipment. See Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005).

Sovereign/Governmental Immunity

Sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits against the State or other governmental units unless the governmental unit consents to suit. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). While sovereign immunity refers to the immunity from suit and liability of the State, governmental immunity protects political subdivisions of the State, including counties, cities, and school districts. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). Both sovereign and governmental immunity afford the same degree of protection and both levels of government are subject to the Tort Claims Act. Tex. Civ. Prac. & Rem.Code Ann. § 101.001(3) (Vernon 2005); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.2008). If an individual is sued in his official capacity, he may raise any defense that would be available to his employer, including the defense of immunity. Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex.App.-El Paso 1993, writ dism’d w.o.j.); accord Bowen v. Comstock, No. 10-05-00295-CV, 2008 WL 2209722, *2, 2008 Tex.App. LEXIS 3927, *5 (Tex.App.-Waco May 28, 2008, pet. dism’d) (memo, op.).

Because immunity from suit defeats a trial court’s subject matter jurisdiction, it is properly asserted in a plea to the jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004); accord Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844-46 (Tex.2007). Whether a plaintiff has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law reviewed de novo. Miranda, 133 S.W.3d at 226. We consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties. Texas Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001).

Texas ToRt Claims Act

The Texas Tort Claims Act provides a limited waiver of immunity for certain suits against governmental entities and caps recoverable damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.2008). Because the Act does not abolish immunity, we look to the terms of the Act to determine the scope of its waiver. Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.1996). Further, when construing a statute that purportedly waives immunity, we generally resolve ambiguities by retaining immunity. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex.2003).

Operation or Use

Pursuant to the Act, a governmental unit is liable for property damage proximately caused by the negligence of an employee acting within his scope of employment if the property damage arises from the operation or use of a motor-driven vehicle or motor-driven equipment and the employee would be personally liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1) (Vernon 2005). The Veazeys assert that the motor-driven vehicle at issue, in this case the wrecker, need not actually be operated by a governmental employee for the government and the employee to come within the statutory waiver. We disagree with the Veazeys.

The Veazeys’ argument in this appeal is best expressed by the following paragraph from their brief.

Texas Court’s (sic) have construed the language of “operation or use” to mean the state actor was either operating the vehicle or, not actually operating the vehicle but in some way “using” the vehicle. A State Actor “uses” a motor driven vehicle when the State Actor somehow exercises direct control over a third party’s operation of a motor driven vehicle. McLennan County and Ray Meadows exercised direct control over the wrecker driver on Culpepper Road in the following ways. First, by being in charge of the scene and not allowing the house to move down the road. Second, by ordering the tow truck driver to back up even after the driver informed Mr. Meadows that if he backed up the house in this fashion it would fall, and third, directing the movements of the driver on how to back up. These actions caused the house to fall into the ditch which led to the house having to be destroyed. Ray Meadows (sic) actions were the direct and proximate cause of the house falling into the ditch.

Appellants’ brief pgs. 4-5. To support this argument, the Veazeys rely on County of Galveston v. Morgan, 882 S.W.2d 485 (Tex. App.-Houston [14th Dist.] 1994, writ denied) and City of El Campo v. Rubio, 980 S.W.2d 943 (Tex.App.-Corpus Christi 1998, pet. dism’d w.o.j.).

In County of Galveston v. Morgan, Morgan, the employee of an independent contractor, was injured when he fell from the bed of a truck while delivering road resurfacing material to repair a county road. Galveston County supplied spotters signaled the truck drivers when to move forward and when to stop. One of the spotters moved the truck too close to a power line and Morgan climbed into the bed of the truck to determine how close it was to the power line. He received an electric shock which knocked him to the ground. The jury found Morgan and the County equally negligent. On appeal, the County challenged the legal and factual sufficiency of the evidence to support a finding that the accident arose from a County employee’s use or operation of a motor driven vehicle. The County argued that the vehicle was not a County truck and the driver was not a County employee. The Houston Court rejected these arguments and found a waiver of immunity because the County spotters “used” or “operated” the trucks by controlling their movements. County of Galveston v. Morgan, 882 S.W.2d 485, 490 (Tex.App.-Houston [14th Dist.] 1994, writ denied).

In City of El Campo v. Rubio, the Corpus Christi Court of Appeals followed Morgan. In that case, a police officer allegedly ordered an unlicensed passenger to operate a motor vehicle following the driver’s arrest. The passenger, in accordance with the officer’s order, followed the patrol car onto the highway and was struck by another vehicle. The court of appeals found that immunity was waived because the officer “used” or “operated” the vehicle by exercising control over it. City of El Campo v. Rubio, 980 S.W.2d 943, 945-946 (Tex.App.-Corpus Christi 1998, pet. dism’d w.o.j.).

We decline to follow these cases. There is another line of cases that serves as a guide to our decision in this appeal.

The line of cases begins with the Texas Supreme Court’s decision in LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49 (Tex.1992). In LeLeaux, Monica, a high school band student, had been sitting on the floor of a parked school bus, hanging her legs out of the opened rear emergency exit door. Monica jumped out of the rear emergency door of the parked school bus to retrieve a pillow that had fallen. She bumped her head on the door frame when she re-entered through the same door. The bus driver was not present when these events took place. After the bus driver entered the bus and discovered that the back door was open, he asked Monica to close it. As she attempted to do so, she passed out and fell to the ground. Monica sued the school district, alleging that the school district was negligent in its operation and use of school buses because of its practice of regularly loading and unloading band students and their instruments through the emergency doors. She made the same allegation against the bus driver. The trial court granted summary judgment for the school district on the ground of governmental immunity.

The Supreme Court held that “[wjhile the statute does not specify whose operation or use is necessary — the employee’s, the person who suffers injury, or some third party — [ ] the more plausible reading is that the required operation or use is that of the employee. This requirement is consistent with the clear intent of the [Tort Claims] Act that the waiver of sovereign immunity be limited.” LeLeaux, 835 S.W.2d at 51. Because the injury did not result from an employee’s operation or use of the bus, the Court held that immunity was not waived. Id. at 52. Additionally, the Court found that the bus driver was exercising his judgment and discretion and found him to be immune from liability. Id. at 53.

Another case is Goston v. Hutchison, 853 S.W.2d 729 (Tex.App.-Houston [1st Dist.] 1993, no pet.). In Goston, two students were riding on a Houston Independent School District bus when they asked the driver to let them off at an undesig-nated stop where they were picked up by a friend. Later, the Mend ran into a feed object. One of the students was killed and the other was seriously injured. The school district and the bus driver were sued and asserted that they were entitled to governmental immunity because the injuries did not arise out of the use or operation of a motor vehicle. The trial court granted the school district’s and the bus driver’s motions for summary judgment. Following LeLeaux and other school bus cases, the Houston Court agreed that use of the school bus was not an issue in its case and affirmed the trial court’s decision. Id. at 732-734.

Yet another case is Sepulveda v. County of El Paso, 170 S.W.3d 605 (Tex.App.-El Paso 2005, pet. denied). In Sepulveda, in response to a complaint about drag racing in front of a company, an El Paso County deputy asked the company’s assistant manager if the company would build a “berm” 50 feet from the paved part of the roadway to prevent the drag racers from escaping deputies on the unpaved part of the road. No one from the Sheriffs Department was present when the berm was constructed. Nevertheless, Sepulveda and others sued the County and the Sheriff after their vehicle collided with the berm. The County filed a plea to the jurisdiction, alleging that governmental immunity had not been waived. The trial court granted the plea to the jurisdiction.

On appeal, Sepulveda acknowledged that the deputy did not personally operate or use motor-driven equipment but argued that the deputy negligently exercised control over the company employee who built the berm. Sepulveda also relied on Morgan and Rubio, along with Sem v. State, 821 S.W.2d 411 (Tex.App.-Fort Worth 1991, no pet.) and City of El Paso v. W.E.B. Investments, 950 S.W.2d 166 (Tex.App.-El Paso 1997, pet. denied). The El Paso Court of Appeals distinguished these four cases from its case because it was undisputed that a county employee did not personally operate or use a motor-driven vehicle or equipment to construct the berm. Sepulveda, 170 S.W.3d at 614.

But we believe the better reasoned and more factually similar case in this line of cases is the Beaumont Court’s decision in Tarkington I.S.D. v. Aiken, 67 S.W.3d 319 (Tex.App.-Beaumont 2002, no pet.). In that case, Aiken and his mother sued T.I.S.D. for personal injuries sustained while riding on the tailgate of a privately-owned pickup track on school property. According to both parties, Aiken’s supervisor, a T.I.S.D. employee, instructed Aiken and two others, who were participants in a summer work program, to move school desks from one building to another. The supervisor then left to mow the school’s football field. After mowing for a period of time, he returned to the building and saw one of the participants backing up a pickup to the building. Aiken was on the tailgate. Aiken was injured when the driver backed into the building.

The thrust of Aiken’s pleadings, evidence, and arguments was that a T.I.S.D. employee-supervisor, who was not driving the pickup, negligently supervised the program participant who was driving and that the T.I.S.D. supervisors were not properly trained. Tarkington I.S.D. v. Aiken, 67 S.W.3d 319, 321-322 (Tex.App.-Beaumont 2002, no pet.). Although the T.I.S.D. employee did not bring the privately owned vehicle into service or action, did not employ it for or apply it to a given purpose, and did not perform a practical work with it, Aiken argued that governmental immunity was waived because the only supervisor on the site exercised control and direction over the program participants’ actions and in that sense “used” or “operated” the pickup. Id. at 324. Like the Veazeys, to support his argument, Aiken relied on Morgan and Rubio.

The Beaumont Court did not accept Aiken’s argument or the propositions advocated by Morgan and Rubio. Instead, and relying on the Texas Supreme Court decision in LeLeaux, the Beaumont Court held that Aiken’s complaint did not fall within the scope of the waiver of immunity under the Tort Claims Act. Id. at 326; see Le-Leaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 52 (Tex.1992). The Court stated,

Appellees would have us read the statute more expansively than LeLeaux stated it should be read. We decline to do so until directed otherwise by the Texas legislature or by the Texas Supreme Court. The record before us establishes that Tarkington I.S.D. did not own the vehicle and its employee did not operate or use the vehicle. There is no nexus between Mark Aiken’s injuries and an employee’s negligent operation or use of the vehicle.

Tarkington I.S.D., 67 S.W.3d at 326.

Like the Beaumont Court, we decline to read the statute more expansively than it is written. The record in this case establishes that Meadows did not use or operate the wrecker, and thus, immunity was not waived as to McLennan County or Meadows in his official capacity.

Personal Liability According to Texas Law

The County and Meadows also assert that because Meadows would not be personally liable for the facts as alleged by the Veazeys, governmental immunity was not waived. Appellant’s brief at pg. 14 (“Furthermore, Commissioner Meadows could not be personally liable to the Veaz-eys according to Texas law for allegedly making such statements. See § 101.021(1)(B), Texas Civil Practice & Remedies Code.”). This requisite is the second element required to be found for there to be a waiver of governmental immunity under the Tort Claims Act provision.

A government employee, like any other employee, is generally not liable to an injured party if the duty owed the injured party arises solely from the relationship between the government and the person injured and not from a duty that arises generally on a person as a member of the public-at-large. This is where the provision that is largely ignored in the evaluation of governmental immunity is so critical: the provision that immunity is waived only if the employee would be liable to the claimant according to Texas law. It is this conjunctive requirement that goes with the negligent use or operation of a motor-driven vehicle or motor-driven equipment that caused injury that makes the test difficult to meet in situations where the actor is not actually operating the motor driven equipment as in this proceeding.

So, even if we held that Meadows used or operated the wrecker, Meadows was not individually liable to the Veazeys. This is one reason why the Morgan case is inapplicable to this proceeding. The Tort Claims Act provides for a limited waiver if property damage is proximately caused by the negligence of an employee acting -within the scope of employment and the property damage arises from the operation or use of a motor-driven vehicle or motor-driven equipment and the employee would be personally liable to the claimant. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.021(1) (Vernon 2005). In Morgan, the county did not allege individual immunity on behalf of the employees. Thus, the question of individual liability of the employee was not addressed by the court and did not have any impact on the court’s decision on appeal. Had the county in Morgan alleged individual immunity, the result in that proceeding may have been different.

In this proceeding, the Veazeys are not actually asserting the wrecker was operated negligently. Rather, they are asserting that the decisions Meadows made about when and how to clear the road were his decisions and were negligent. The use of the wrecker was nothing more than the mechanical implementation by a sub-contractor of what the Veazeys assert were bad decisions. But whatever decisions Meadows made were made by him in his capacity as a commissioner in McLennan County to clear an obstruction from a roadway. As such, the duty is not Meadows’s as a member of the public. Rather, it arises from his capacity as a commissioner.

If an action involves personal deliberation, decision, and judgment, it is discretionary; an action that requires obedience to orders or the performance of a duty to which the employee has no choice is ministerial. Ramos v. Texas Dep’t of Pub. Safety, 35 S.W.3d 723, 727 (Tex.App.Houston [1st Dist.] 2000, pet. denied) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex.1994)). In determining whether an act is discretionary, the issue is whether an employee was performing a discretionary function, not whether he had the discretion to do an allegedly wrongful act while discharging that function or whether the employee’s job description included discretionary duties. Id. (citing Chambers, 883 S.W.2d at 653). Whatever can be said of the nature of Meadows’s actions, it is clear from all of the Veazeys’ allegations and the evidence that there was no ministerial act that he was to perform and any action he engaged in was a discretionary decision in determining the best method by which to move the house so as to clear it from obstructing the county road. Cf. Ramos, 35 S.W.3d 723 (A Department of Public Safety officer was engaged in discretionary acts during a driving test by requesting the driver to perform various driving action and by evaluating whether the driver could safely operate the vehicle during the test.).

Therefore, immunity was also not waived as to McLennan County and Meadows in his official capacity because Meadows would not be liable as a private person under Texas law because Meadows is not liable in his individual capacity. See De Witt v. Harris County, 904 S.W.2d 650 (Tex.1995); Ramos, 35 S.W.3d at 729; see also Leitch v. Hornsby, 935 S.W.2d 114 (Tex.1996) (Because a corporate officer acting on the corporation’s behalf does not owe a corporate employee an individual duty to provide that employee with a safe work place, and because officers did not breach any separate duty, the court of appeals erred in affirming their individual liability.). This is consistent with the separate determination made by the trial court that dismissed Meadows in his individual capacity.

Because we sustain the first issue we need not address other issues raised by the County and Meadows.

Conclusion

Our holding is consistent with the general purpose of governmental immunity in that it protects the public coffers from uncertain and unpredictable results of litigation. If bad or negligent decisions or instructions about how to implement government decisions could result in liability because there is simply a use of a motor driven equipment or use of tangible personal property, it would, in large part, do away with governmental immunity.

Because Meadows was not using or operating a motor-driven vehicle or motor-driven equipment and because Meadows was not liable in his individual capacity, the trial court had no subject matter jurisdiction of the Veazeys’ lawsuit and erred in denying the County’s and Meadow’s plea to the jurisdiction. Further, this jurisdictional defect in the Veazeys’ negligence claims cannot be cured by allowing them to plead additional facts. See Tex. Parks & Wildlife Dep’t v. E.E. Lowrey Realty, Ltd., 235 S.W.3d 692, 694 (Tex.2007). Therefore, the trial court’s order is reversed, and judgment is rendered that the claims against the County and Meadows are dismissed with prejudice.

      . As discussed later in this opinion, the proper term when referring to the immunity of a political subdivision, rather than the State of Texas, is "governmental'' immunity. This term, however, has not been consistently used in the cases. For consistency, we will use "governmental” immunity in all instances where it is appropriate even if the party or case used the term "sovereign” immunity. We will use the term "sovereign” immunity only when we are specifically referring to the immunity of the State.

      . Because the Veazeys sued both the County and Meadows, an employee of the County, the County could have filed a motion to dismiss Meadows under the election of remedies provision in the Tort Claims Act. Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e) (Vernon 2005) ("If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.”). However, the County did not file a motion to dismiss.


author: FELIPE REYNA, Justice.

text:
    Damon BANKHEAD, Appellant, v. David T. SPENCE, D.D.S., Appellee.
    No. 10-09-00171-CV.
    Court of Appeals of Texas, Waco.
    March 24, 2010.

      Damon Bankhead, Palestine, pro se.
    Greg Abbott, Office of the Atty. Gen., Austin, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

FELIPE REYNA, Justice.

Prison inmate Damon Bankhead appeals from the dismissal of the health care liability claim he filed against David T. Spence, a prison dentist. Bankhead contends in three issues that: (1) the court’s denial of his motion for appointed counsel constitutes a “due process/open courts violation”; (2) the expert report requirement of section 74.351 of the Civil Practice and Remedies Code is an “exceptional circumstance” requiring the appointment of counsel; and (3) the dismissal of his claim denied him due process of law. We will affirm.

Open Courts

Bankhead contends in his first issue that the court’s denial of his motion for appointed counsel constitutes a “due process/open courts violation.”

Bankhead claims that Spence was negligent in filling one of his teeth in November 2007. After exhausting his administrative remedies in the prison grievance system, Bankhead filed suit on October 23, 2008. The 120-day statutory deadline for filing an expert report was February 20, 2009. See Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(a) (Vernon Supp. 2009). Bank-head filed a motion for appointment of counsel on February 23. Spence filed a motion to dismiss for lack of the required expert report on March 9. After a hearing, the court denied Bankhead’s motion for appointment of counsel and granted Spence’s motion to dismiss.

The Texas Constitution’s open courts guarantee provides that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” This provision assures that a person bringing a well-established common-law cause of action will not suffer unreasonable or arbitrary denial of access to the courts. “[I]t is, quite plainly, a due process guarantee.”
A statute has the effect of denying access to the courts if it unreasonably abridges a plaintiffs right to obtain redress for injuries caused by the wrongful acts of another. Proof of an open courts violation requires two elements: (1) a cognizable, common-law claim that is statutorily restricted, and (2) the restriction is unreasonable or arbitrary when balanced against the statute’s purpose and basis.

Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 783 (Tex.2007) (quoting Tex. Const. art. I, § 13; Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983)) (other citations omitted).

Bankhead contends that the denial of his motion for appointed counsel constitutes a due process and open courts violation “because the door to the court is closed to him without counsel to assist him in filing the expert report.” This Court and others have determined that the expert report requirement itself does not violate the open courts guarantee because it “is rationally related to the purpose of the statute to discourage frivolous malpractice suits.” Powell v. Clements, 220 S.W.3d 138, 140 (Tex.App.-Waco 2007, pet. denied); accord Offenbach v. Stockton, 285 S.W.3d 517, 522-24 (Tex.App.-Dallas 2009, pet. granted); see also Smalling v. Gardner, 203 S.W.3d 354, 370-71 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (addressing prior law).

The Corpus Christi Court of Appeals has rejected a similar claim with respect to a trial court’s refusal to appoint counsel in a civil case. See Nance v. Nance, 904 S.W.2d 890, 892-93 (Tex.App.-Corpus Christi 1995, no writ). In that case, the court concluded that a refusal to appoint counsel was not arbitrary or unreasonable and thus did not constitute a denial of access to the courts. Id.; cf. Yancy, 236 S.W.3d at 783 (“[open courts] provision assures that a person bringing a well-established common-law cause of action will not suffer unreasonable or arbitrary denial of access to the courts”). We reach the same conclusion here.

Bankhead argues that the denial of appointed counsel deprived him of the opportunity to be heard at a meaningful time and in a meaningful manner. This is a due process claim. See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ”) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)); Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 658 (Tex.2004) (citing Mathews).

We will limit our inquiry to the question of whether Bankhead was deprived of the opportunity to be heard in a meaningful manner because he did not file his motion for appointment of counsel until the eve of the statutory deadline. Any lack of meaningful time lays solely at Bankhead’s feet because of his delay in requesting the appointment of counsel.

As the Supreme Court of Texas has explained, “plaintiffs in medical malpractice cases are routinely represented by counsel on contingent fee contracts. As long as his claims against Gibson were meritorious, Tolbert’s indigency should not have prevented him from employing able counsel.” Gibson v. Tolbett, 102 S.W.3d 710, 713 (Tex.2003). In the same manner, Bankhead’s indigency should not have prevented him from retaining counsel on a contingent-fee basis if his claims against Spence were meritorious.

Generally, the federal constitution requires appointment of counsel only when an indigent person may be deprived of his physical liberty. Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 25, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640 (1981); Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir.1983); United States v. 1604 Oceola, 803 F.Supp. 1194, 1196 (N.D.Tex.1992); Ex parte Walker, 748 S.W.2d 21, 22 (Tex.App.-Dallas 1988, no writ); Op. Tex. Att’y Gen. No. JM-403 (1985). The Texas constitution has not been interpreted differently in this regard. See NCAA v. Yeo, 171 S.W.3d 863, 867 n. 14 (Tex.2005) (“ ‘While the Texas Constitution is textually different in that it refers to “due course” rather than “due process,” we regard these terms as without meaningful distinction.’ As a result, in matters of procedural due process, we have traditionally followed contemporary federal due process interpretations of procedural due process issues.”) (quoting Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995) (other citations omitted)).

“[A]s a litigant’s interest in personal liberty diminishes, so does his right to appointed counsel.” Lassiter, 452 U.S. at 26, 101 S.Ct. at 2159. Nevertheless, the United States Supreme Court held in Lassiter that due process may require the appointment of counsel in cases not involving a potential deprivation of personal liberty. Id. at 31-32, 101 S.Ct. at 2162.

[There are] three elements to be evaluated in deciding what due process requires, viz., the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions. We must balance these elements against each other, and then set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.

Id. at 27, 101 S.Ct. at 2159 (citing Mathews, 424 U.S. at 334-35, 96 S.Ct. at 903). This decision must be made on a case-by-case basis. See id. at 31-32, 101 S.Ct. at 2161-62; 1604 Oceola, 803 F.Supp. at 1197.

The Supreme Court concluded in Lassi-ter that due process did not require the appointment of counsel under the circumstances of that parental-rights termination case. Lassiter, 452 U.S. at 32-33, 101 S.Ct. at 2162-63. A Texas federal district court reached the same conclusion in a forfeiture proceeding involving the claimants’ “substantial and important” interest in maintaining ownership of their family home. 1604 Oceola, 803 F.Supp. at 1197-98.

Here, Bankhead had nearly sixteen months after his tooth was filled and before the statutory dismissal date to retain counsel. He was aware before filing suit that the provisions of Chapter 74 applied to his lawsuit. He included with his petition an authorization for release of protected health information as provided by section 74.052. See Tex. Civ. Prac. & Rem. Code Ann. § 74.052 (Vernon 2005). His petition itself acknowledges that the claim is filed “pursuant to CP & R § 74.001.” Id. § 74.001 (Vernon 2005). He told the trial court that he had contacted ten attorneys about representing him but received responses from only two, both declining to represent him but referring him to other counsel.

Compensation for an alleged civil wrong is an important legal interest, but it is not a compelling one, particularly not under the facts of this case. Under the circumstances, we cannot say the private interests at stake and the risk of an erroneous deprivation are so substantial as to overcome the presumption against the right to appointed counsel. See Lassiter, 452 U.S. at 32-33, 101 S.Ct. at 2162-63; 1604 Oceola, 803 F.Supp. at 1197-98; see also Nance, 904 S.W.2d at 892-93.

The expert report requirement of section 74.351 does not violate the open courts guarantee because it “is rationally related to the purpose of the statute to discourage frivolous malpractice suits.” Powell, 220 S.W.3d at 140. Bankhead has not established a due process right to counsel. To the extent Bankhead contends that the denial of counsel, standing alone, violates the open courts guarantee, we disagree. The limitations placed on appointment of counsel in civil proceedings by the Texas Supreme Court are rationally related to the legislature’s intent to discourage frivolous inmate suits. See Gibson, 102 S.W.3d at 713.

Bankhead’s first issue is overruled.

Exceptional Circumstance

Bankhead contends in his second issue that the expert report requirement is an “exceptional circumstance” requiring the appointment of counsel. We disagree.

The motion for appointed counsel in Gibson was filed in response to the defendant’s motion to dismiss for failure to file an expert report under the predecessor to section 74.351. Id. at 711-12. The Court held that exceptional circumstances warranting appointment of counsel were not present in that case. Id. at 713. Other appellate courts have reached the same conclusion in suits governed by section 74.351. See Conely v. Brackenridge Hosp., No. 03-05-00782-CV, 2007 WL 2214484, at *2-3 (Tex.App.-Austin July 31, 2007, no pet.); Jenkins v. Tex. Dep’t of Criminal Justice, No. 13-03-073-CV, 2004 WL 1117171, at *1-2 (Tex.App.-Corpus Christi May 20, 2004, no pet.); Wigfall v. Tex. Dep’t of Criminal Justice, 137 S.W.3d 268, 274-75 (Tex.App.-Houston [1st Dist.] 2004, no pet.). We are aware of no decision reaching the opposite conclusion.

Bankhead’s second issue is overruled.

Constitutionality of Section 74.351

Bankhead contends in his third issue that the dismissal of his claim denied him due process of law. He characterizes this as an as-applied challenge to the constitutionality of section 74.351, citing Herrera v. Seton Nw. Hosp., 212 S.W.3d 452 (Tex.App.-Austin 2006, no pet).

In Herrera, however, the Austin Court of Appeals held that section 74.351 was not unconstitutional as applied. Id. at 461-62. Other courts have reached the same conclusion. Offenbach, 285 S.W.3d at 524; Smith v. Hamilton, No. 09-07-128-CV, 2007 WL 1793754, at *2-3 (Tex.App.-Beaumont June 21, 2007, no pet.); Thoyakulathu v. Brennan, 192 S.W.3d 849, 855-56 (Tex.App.-Texarkana 2006, no pet.); see also Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.2003) (rejecting as-applied challenge to predecessor to section 74.351).

Bankhead’s argument does not persuade us that a different result should obtain in his case. His third issue is overruled.

We affirm the judgment.

Chief Justice GRAY concurs in the Court’s judgment to the extent it affirms the trial court’s judgment of dismissal.

He does not join the opinion. A separate opinion will not issue.

      . Although the file stamp on the motion is dated 3 days after the 120-day deadline, the cover letter accompanying the motion is dated 2 days before this deadline.

      . Bankhead has attached letters from two attorneys to his brief. Assuming that these are the two responses he mentioned at the hearing, we note that in both instances he did not contact these attorneys until after the statutory dismissal date had passed. Cf. Okorafor v. Uncle Sam & Assocs., Inc., 295 S.W.3d 27, 39 n. 14 (Tex.App.-Houston [1st Dist] 2009, pet. denied) (appellate court may not consider documents attached to brief but not included in appellate record).

      . Bankhead includes an open courts argument within his third issue. However, we fully addressed his open courts complaint in addressing his first issue.


author: GUADALUPE RIVERA, Justice. DAVID GUADERRAMA, Judge,

text:
    The STATE of Texas, Appellant, v. Ana Maria ALDERETE, Appellee.
    No. 08-09-00066-CR.
    Court of Appeals of Texas, El Paso.
    April 21, 2010.
    Rehearing Overruled July 28, 2010.

      Jaime E. Esparza, Dist. Atty., El Paso, TX, for State.

      Rafael Salas, Salas & Salas, L.L.P., El Paso, TX, for Appellee.
    Before McCLURE, J., RIVERA, J., and GUADERRAMA, Judge.
   OPINION

GUADALUPE RIVERA, Justice.

The State appeals the trial court’s order granting Ana Maria Alderete’s motion to suppress. After reviewing the applicable law, we sustain the State’s sole issue, reverse the order of the trial court, and remand for further proceedings.

BACKGROUND

Alderete was charged by information for the offense of driving while intoxicated. Subsequently, Alderete filed a motion to suppress, alleging the initial stop was unlawful. Alderete did not challenge any of the officers’ actions after her vehicle was stopped.

At the suppression hearing, Officer Anthony Alegre testified that he is employed with the El Paso Police Department and has been so for a year and a half, that he is assigned to the patrol division, and that he has received training in the investigation of driving-while-intoxicated offenses, including the traffic stops relating to such offenses. Based on his training and experience, Officer Alegre noted that some of the common characteristics exhibited by intoxicated drivers include driving at nighttime and swerving within or outside their lane of traffic.

Similarly, Officer Daniel Garcia testified that he too is employed with the El Paso Police Department and has been so for four years, and that he has received training in the investigation of driving-while-intoxicated offenses. Like Officer Alegre, Officer Garcia, based on his training and experience, found swerving within or outside a driver’s lane of traffic, driving without lights, making erratic turns, driving too slow or too fast, and driving late at night to be common characteristics of those committing the driving-while-intoxicated offense.

Both officers related that on November 5, 2007, at approximately 3 a.m., they were traveling west on Interstate 10 when they observed Alderete driving a Jeep Cherokee in front of them, in the same lane. As they followed Alderete, Officer Alegre observed her swerving inside the lane. Traffic was light, but the officers could not recall whether Alderete came close to contacting or endangering another car. The officers could not recall how many times they saw the vehicle swerve, but after following Alderete for half of a mile, Officer Alegre noted she was unable to drive in a straight manner and stay within the lane. Consequently, the officers initiated a traffic stop, not because she violated the traffic code, but because she was swerving within her lane at a late hour, which based on their experience, indicated that she was intoxicated.

Based on the testimony presented, Al-derete asserted that there was no evidence of intoxication and that swerving within a lane is not a traffic violation; thus, she asked the trial court to grant her motion to suppress on grounds that the officers lacked authority to initiate a stop. The State disagreed, arguing that although a traffic code violation may not have been committed, the officers had reasonable suspicion to stop Alderete for driving while intoxicated. The trial court agreed with Alderete. In its findings of fact and conclusions of law, the trial court found that the officers’ testimonies were credible, but concluded that Alderete’s swerving within the lane was not a traffic code violation and therefore, that the officers lacked authority to initiate a stop.

DISCUSSION

On appeal, the State asserts in a single issue that the trial court erred by granting Alderete’s motion to suppress. According to the State, the officers did not need to find a violation of the traffic code before stopping Alderete as they had reasonable suspicion to initiate a stop for driving while intoxicated when, in light of their training and experience, Alderete swerved within her lane, at a late hour, for half of a mile, which indicated that she was intoxicated. Alderete responds that no traffic violation occurred and her swerving within the lane, at a late hour, was insufficient to provide reasonable suspicion that she was driving while intoxicated.

Standard of Review

We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007). We do not engage in our own factual review as the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. Amador v. State, 275 S.W.3d 872, 878 (Tex.Crim.App.2009). Rather, we give almost total deference to a trial court’s determination of historical facts, particularly when the trial court’s findings are based on an evaluation of credibility and demeanor. St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman, 955 S.W.2d at 89. However, we review de novo the application of legal principles to a specific set of facts, including the trial court’s determination of reasonable suspicion and probable cause. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008); Guzman, 955 S.W.2d at 87. Indeed, when the trial court files findings of fact and conclusions of law virtually accepting the credibility of the officers and the State’s version of events, the only question before us is whether the trial court properly applied the law to the facts it found. See State v. Ballman, 157 S.W.3d 65, 69 (Tex. App.-Fort Worth 2004, pet. ref'd).

Applicable Law

A law-enforcement officer is justified in detaining a person for investigative purposes if the officer has a reasonable suspicion to believe the individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005); Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App.1997) (citing Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.” Castro v. State, 227 S.W.3d 737, 741 (Tex.Crim.App. 2007). The reasonable suspicion determination disregards the subjective intent of the officer making the stop and looks solely to whether there was an objective basis for the stop. Ford, 158 S.W.3d at 492.

In Curtis v. State, 238 S.W.3d 376, 379 (Tex.Crim.App.2007), the Court of Criminal Appeals reaffirmed its previous holding that the “as consistent with innocent activity as with criminal activity” construct is not a viable test for determining reasonable suspicion. The Court noted that “there may be instances when a person’s conduct viewed in a vacuum, appears purely innocent, yet when viewed in light of the totality of the circumstances, those actions give rise to reasonable suspicion.” Id. at 380. According to the Court, the question, in determining reasonable suspicion to stop, is based on the totality of the circumstances, including the consideration of the officers’ training and experience. Curtis, 238 S.W.3d at 379-80. Indeed, when innocent facts, meaningless to the untrained, are used by trained law-enforcement officers, those facts, combined with permissible deductions therefrom, may form a legitimate basis for suspicion of criminal activity. See Woods, 956 S.W.2d at 38-39.

Application

Here, the trial court concluded that the officers lacked reasonable suspicion to stop Alderete because her swerving did not violate the traffic code. However, there is no requirement that a traffic regulation must be violated in order for an officer to have sufficient reasonable suspicion to justify a stop of a vehicle. James v. State, 102 S.W.3d 162, 172 (Tex.App.Fort Worth 2003, pet. ref'd); Cook v. State, 63 S.W.3d 924, 929 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). Rather, an officer may be justified in stopping a vehicle based upon a reasonable suspicion of driving while intoxicated, which is a penal offense. Curtis, 238 S.W.3d at 379; James, 102 S.W.3d at 172; Cook, 63 S.W.3d at 929; Gajewski v. State, 944 S.W.2d 450, 453 (Tex.App.-Houston [14th Dist.] 1997, no pet.); Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). In this case, Officer Garcia testified that Alderete was stopped not because of a violation of the traffic code, but based on suspicion of intoxication, an argument articulated by the prosecutor and implicitly rejected by the trial court.

In Curtis, the Court of Criminal Appeals found sufficient evidence from which the trial court could have found reasonable suspicion for the stop. Curtis, 238 S.W.3d at 381. There, the first officer testified that he had received specialized training in detecting individuals driving while intoxicated, it was part of his training that a driver’s weaving in and out of a lane was a possible indication that the driver was intoxicated, and appellant weaved at least three times out of his lane over a relatively short distance of a few hundred yards at one o’clock in the morning. Curtis, 238 S.W.3d at 380. The second officer testified that he had been a state trooper for over 23 years, he was “certified in different ways” to detect intoxicated drivers, he, like the arresting officer, was also trained to consider weaving as a possible sign of intoxicated driving, and appellant’s vehicle had been “doing a considerable amount of weaving” in and out of his lane that night. Id. According to the Court, the trial court could have reasonably concluded, based on the totality of the circumstances, that the officers had reasonable suspicion to stop appellant for driving while intoxicated. Id. In so doing, the Court noted that the intermediate court erred by solely analyzing whether weaving, by itself, gave rise to a suspicion of intoxication without considering the other evidence presented. Id. at 379-81.

The facts here are somewhat similar. The record reflects that the stop occurred at 3 a.m., and Officer Garcia testified that most driving-while-intoxicated offenses occur between 9 p.m. and 7 a.m. Alderete was unable to drive in a straight manner as she swerved within her lane for half of a mile on the interstate, a much longer period of time than the few hundred yards observed in Curtis. Both officers testified that they were trained to detect individuals driving while intoxicated and that weaving is a common characteristic of intoxicated drivers. Finally, both officers stated that they received training in investigating driving-while-intoxicated offenses and had in fact investigated many such offenses. When viewing the totality of the circumstances and considering the officers’ collective training and experience in investigating driving-while-intoxicated offenses, we find the officers could have formed reasonable suspicion to stop Alderete on suspicion of driving while intoxicated when she continuously swerved within her lane for half of a mile in the early morning hours. See Curtis, 238 S.W.3d at 380-81. Accordingly, we hold that the trial court’s focus on the sole issue of weaving within the lane not giving rise to a reasonable suspicion that a traffic-code violation was committed, was error in that the court failed to consider whether the officers had reasonable suspicion, based on the totality of the circumstances, that Alderete was driving while intoxicated. We therefore find that the trial court abused its discretion by granting Alderete’s motion to suppress.

CONCLUSION

We sustain the State’s sole issue, reverse the order of the trial court, and remand the case to the trial court for further proceedings.

GUADERRAMA, Judge, dissenting, sitting by assignment.

DAVID GUADERRAMA, Judge,

dissenting (Assigned).

I cannot agree that the arresting officers stopped Alderete for suspicion of driving while intoxicated nor can I agree that the facts articulated by the arresting officers rise to the level of a reasonable suspicion that Alderete was committing any offense including driving while intoxicated. It is undisputed that the standard by which the judiciary should review a stop decision by the police is the “totality of circumstances” test. However, that standard does not allow the reviewing court to indulge the State with a “reasonable inference from specialized training or experience” that was never made by the arresting officers. In addition, the “totality of the circumstances” test does not limit the trial court to a review of only the totality of the incriminating circumstances but rather is a review of a totality of all the circumstances, the “whole picture.”

The record does not support a finding that either police officer stopped Alderete for suspicion of driving while intoxicated. On numerous occasions, the officers do indicate that they stopped Alderete solely for swerving within her lane. On one occasion, an officer states he stopped Alder-ete for swerving in her lane and nothing else. On another occasion, an officer testified he stopped Alderete for her safety. Never does either officer testify he stopped Alderete for suspicion of driving while intoxicated. In fact, when given the opportunity to do so, Officer Alegre did not take it. He answered the prosecutor’s question as to why Alderete was stopped for swerving with the conclusion that Al-derete was unable to drive in a straight manner.

If the officers were able to articulate the basis for the stop being “swerving within the lane” or “for her safety,” certainly they could have articulated “for suspicion of driving while intoxicated.” They never testified that they stopped Alderete because they suspected she was driving while intoxicated or that she was swerving and therefore suspected she was intoxicated. Neither did either officer indicate that the swerving within the lane at night had any special “police significance” due to their training or experience from which they reasonably inferred that Alderete was driving while intoxicated.

Direct of Officer Alegre

Q. And when you saw the vehicle swerving, why did you pull it over?
A. We pulled it over due to the vehicle unable to drive in a straight manner and stay within the lane.
(Emphasis added).
Officer Alegre’s Cross
Q. Now, Officer Alegre, you’ll agree with me that the only reason you stopped Ms. Alderete was because she was swerving within the lane; is that correct?
A. That was the observation we had for the initial traffic stop, sir.
Q. But the only reason you stopped her was for swerving within the lane, correct?
A. Yes, sir.
Officer Garcia’s Cross
Q. Now, Officer Alegre testified that the only reason you stopped Ms. Alder-ete was because of swerving within the lane?
A. Yes, sir.
Q. Did you agree with him?
A. Yes, sir.
Q. There was no other reason, correct?
A. Not to my knowledge.
Q. And would you be able to tell this Court what traffic violation she—
A. It wasn’t a traffic violation. It was just the mere fact that due to intoxicated individuals driving on the freeway at an early hour, we observed her swerving, and for her safety, pulled her over just to—
Q. But didn’t you just state under oath that the only reason you stopped her was because of a traffic violation?
A. I never said traffic violation.
Q. You didn’t? I asked you if Officer Alegre stated that that was the only reason he stopped her and you agreed with me.
A. But you never mentioned traffic violation. We stopped her for the swerving.
Q. So you stopped her just for the swerving?
A. Yes, sir.
(Emphasis added).

Based upon this testimony, the trial court correctly granted Alderete’s Motion to Suppress. The only basis for the stop the officers articulated was swerving within the lane. Neither officer ever articulated that he made any “reasonable inference” from what he observed that caused him to believe Alderete was driving while intoxicated. Even in the report they subsequently filed, neither officer indicated the stop was made for suspicion of driving while intoxicated. The facts, inferences and reasons articulated by the officers did not amount to a “reasonable suspicion” that Alderete was committing any crime. The officers never raised a suspicion of driving while intoxicated as justification for the stop. That justification was raised by the State’s prosecutor to justify the impermissible stop. Similarly, in United States v. Brignoni-Ponce, the Government attempted to raise a justification for the stop not raised by the officers making the stop. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In that case, the United States Supreme Court declined to give effect to this type of “after the fact” justification:

The Government also argues that the location of this stop should be considered in deciding whether the officers had adequate reason to stop respondent’s car. This appears, however, to be an after-the-fact justification. At trial the officers gave no reason for the stop except the apparent Mexican ancestry of the car’s occupants. It is not even clear that the Government presented the broader justification to the Court of Appeals. We therefore decline at this stage of the case to give any weight to the location of the stop.

Id. at 886-87 n. 11, 95 S.Ct. at 2583 n. 11.

If, however, I were to indulge the State with an “after the fact justification” that what the officers really did was, based on their experience and training, stop Alder-ete for suspicion of driving while intoxicated which was manifested by Alderete swerving within the lane, I would continue to find that the evidence is lacking. In this case, the police testified as to mere conclusions without supporting facts. In Ford v. State, 158 S.W.3d 488 (Tex.Crim. App.2005), the court considered the case of a defendant who filed a motion to suppress evidence after being stopped for driving and “following too close.” The trial court denied the motion and the court of appeals affirmed stating, “Trooper Peavy’s experience and training qualified him to make a judgment on whether, ‘considering the speed of the vehicles, traffic and the conditions of the highway,’ [Ford] was following the car in front of him too closely.” Id. at 492. The Court of Criminal Appeals reversed finding that Trooper Peavy’s testimony was a mere conclusion devoid of fact because the trooper only stated that the defendant was “following too close.” Id. at 493. The Court of Criminal Appeals found an absence of evidence in the record to reveal any facts allowing an appellate court to determine the circumstances upon which the trooper could reasonably conclude that the defendant actually was, had been, or soon would have been engaged in criminal activity. Id.

Though the officers testified that Alder-ete was swerving, there is no factual description supporting that conclusion from which the trial court could gauge the police decision to make the stop. There is no indication of how many times the car “swerved” within the lane. There is no factual description of how the “swerve” was executed or what it looked like so that a reviewing court could make its own judgment as to whether or not that evidence rose to a reasonable suspicion. In Terry v. Ohio, the Supreme Court stated that “demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” Terry v. Ohio, 392 U.S. 1, 22 n. 18, 88 S.Ct. 1868, 1880 n. 18, 20 L.Ed.2d 889 (1968).

In addition, the trial court was an experienced prosecutor and is an experienced judge. Undoubtedly, she has much experience in reviewing and hearing driving while intoxicated cases and would know reasonable suspicion when she hears it. The totality of the circumstances that she could have considered would include the fact that the police did not articulate that Alderete was exhibiting some of the other common characteristics of intoxicated drivers.

Direct of Officer Alegre

Q. In your training and experience as a police officer investigating DWI offenses, do you see common driving characteristics before the vehicle is pulled over?
A: Yes, sir.
Q: And what are some of those?
A: Driving slowly, swerving within or without the lane.
Direct of Officer Garcia
Q: In your training and experience as a police officer, have you seen any common driving characteristics of vehicles?
A: Yes, we have.
Q: What are some of those characteristics[?]
A: Swerving, driving without lights off — I mean, driving with lights off, making erratic turns, driving too slow, driving too fast.

The trial court was able to draw no reasonable inference of criminal activity from the totality of those facts or conclusions and neither can I. Therefore, from the testimony, some of the totality of the circumstances that the trial court could have considered included that Alderete was not driving with her lights off, was not making erratic turns, was not driving too slow, was not driving too fast, and was not swerving without the lane. The totality of the circumstances the trial court may have considered from common experience could also include that there was no testimony that Alderete changed lanes without signaling, no testimony that she failed to maintain a steady speed while driving, no testimony that she was inappropriately applying her brakes or no testimony that Alderete was in any other manner erratic in her driving. The trial court and this Court in considering the “totality of the circumstances” could balance the fact that the driver was swerving within her lane against the absence of the many other characteristics of intoxicated drivers that were not observed by the arresting officers. In considering the totality of these circumstances, I would find no reasonable suspicion to believe Alderete was driving while intoxicated.

In conducting a de novo review of what the officers considered, I would review the conclusions the officers made to determine if they add up to a reasonable suspicion for the stop. See U.S. v. Rangel-Portillo, 586 F.3d 376 (5th Cir.2009) (weighing individual factors to determine what each added to the reasonable suspicion analysis).

Conclusion No. 1 Alderete was unable to drive in a straight manner as she swerved within her lane. This would only be relevant and incriminating if the officer could somehow know that Alderete was attempting to drive in a straight line and was incapable of doing so. However, here, the officers’ conclusions that the driver was “unable to drive in a straight manner” as she weaved in her lane assumes that the driver was attempting to drive in a straight manner and was unable to so do. Nothing in the law required Alderete to drive in a straight manner within the lane because the legislature has established that driving anywhere within the marked lane is straight enough. Section 545.060 of the Texas Transportation Code addresses driving on a roadway laned for traffic:

(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;....

Tex. Transp. Code Ann. § 545.060 (Vernon 1999).

The first conclusion adds nothing significant to the reasonable suspicion analysis.

Conclusion No. 2 Most driving while intoxicated offenses occur at night between the hours of 9-8. The officer testified that he observed most driving while intoxicated offenses at night. He also testified that he usually worked the graveyard shift. It would not be unusual to see most crimes during the time of his shift, since that is the time he is most on patrol. This conclusion adds little to the reasonable suspicion analysis.

Conclusion No. 3 Officers are trained to detect individuals who are driving while intoxicated. The training the officers articulated was training on Standardize Field Sobriety Tests or SFST.

Direct of Officer Alegre
Q: In the course of your employment as a police officer, have you received training in the investigation of driving while intoxicated offenses?
A: Yes, sir.
Q: What type of training?
A: I’ve had SFST training at the police academy.
Q: Anything else?
A: We had similar training as to traffic stops relating to and making contact with such a situation.
Direct of Officer Garcia
Q: In your training as a police officer, have you received training in the investigation of driving while intoxicated offenses?
A: Yes, I have.
Q: Could you describe that training?
A: It was about a week long at the academy, and not only that, just on-the-job experience.
Q: When you were training at the academy, what training did you receive?
A: It was standardized field sobriety tests training.

Standardized Field Sobriety Test (SFST) is something with which an experienced prosecutor and judge would be very familiar. This trial judge would know that Standardized Field Sobriety Test (SFST) are administered to a vehicle operator after they have been stopped. This training would contribute nothing to the court’s determination of reasonable suspicion to make the stop of someone for suspicion of driving while intoxicated. The only relevant evidence of “training” left for the court to consider would be that one officer had a year and a half of unspecified experience and that the other officer had four years of unspecified “on the job” training. The conclusion that the officers were trained in detecting individuals driving while intoxicated provided no facts for the trial judge to determine how that would add to the reasonable suspicion. From this conclusion, the trial court could glean nothing about the hours of training provided, the training involved, or how the training assisted in differentiating between an intoxicated driver swerve and a sober driver swerve. Reliance on special training is insufficient to establish reasonable suspicion absent objective factual support. Ford, 158 S.W.3d at 494; Torres v. State, 182 S.W.3d 899, 903 (Tex.Crim.App.2005). In Ford, the Court of Criminal Appeals stated:

When a trial court is not presented with such facts, the detention cannot be “subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.” .... Allowing a police officer’s opinion to suffice in specific facts’ stead eviscerates Terry ⅛ reasonable suspicion protection.Therefore, we adhere to the principle that specific, articulable facts are required to provide a basis for finding reasonable suspicion. Mere opinions are ineffective substitutes for specific, articulable facts in a reasonable-suspicion analysis.

Ford, 158 S.W.3d at 493.

The third conclusion adds little to the reasonable suspicion analysis.

Conclusion No. U. Weaving is a common characteristic of intoxicated drivers. This may be true. But so are the other characteristics articulated by the officers that were not here observed. In addition, weaving is also a common characteristic of sober drivers. This comparison has often been attacked by the mantra that the “as consisted with innocent activity as with criminal activity” has been abandoned for the “totality of the circumstances test.” However, often those making this argument fail to apply the “totality of the circumstances test” and, instead, substitute the equally improper test that could be called the “as consistent with guilty activity as with innocent activity test.” These two improper tests are the opposing slippery slopes surrounding the constitutionally permissible ridge we call the “totality of the circumstances” test. This “totality of circumstances test” includes a consideration that the observed activity could be innocent and could be criminal. A stop is not justified unless and until it is reasonable to suspect that the activity is in fact criminal. In Terry v. Ohio, the arresting officer first noticed that the individuals (he later stopped) were engaged in activity that could be innocent. So as not to stop individuals who were engaged in innocent activity, he surveilled the subjects for a lengthy period of time until the totality of what he saw, which included much detail, separated the activity from innocent activity and made it clearly suspicious activity. Although swerving within the lane may be a relevant factor it isn’t sufficient to justify the stop and adds only slightly to the reasonable suspicion inquiry.

In the case at bar, the officers observed Alderete’s vehicle for approximately 30 seconds and there was a complete lack of factual support for the officers’ reliance on their “specialized training” that allowed them to differentiate between a sober driver swerve and an intoxicated driver swerve. Based upon these sparse facts, even at night, a reasonable person, could not form a reasonable suspicion that Al-derete was driving while intoxicated. This stop, in order to be constitutional, had to be based upon the “police significance” drawn from the officers’ experience or training about this particular style of swerving. However, there was no testimony explaining how this style of swerving within the lane at night was significant as a result of their experience or training. There was no testimony that the officers made any inference from the facts that could lead them to reasonably suspect Al-derete of driving while intoxicated.

The burden is on the police to articulate the facts giving rise to the reasonable suspicion for a stop. Because the police failed to adequately articulate the facts or reasonable inferences from those facts, made pursuant to their experience or training, giving rise to a reasonable suspicion that a crime had been, was being, or would be committed, I would affirm the trial court’s decision and respectfully dissent from the majority opinion in this case.

      . We pause to note that the dissent suggests that the officer must specifically testify that the reason for the stop must be the same as that argued to the court by the prosecutor. Acceptance of that position is contrary to settled law. See, e.g., Williams v. State, 726 S.W.2d 99, 100-01 (Tex.Crim.App.1986) (concluding defendant’s parking on two-way roadway with left wheels next to curb and right wheels more than eighteen inches from curb in violation of section 545.303(a)’s predecessor justified stop, despite officer's testimony that he stopped defendant because of suspected drug transaction); Singleton v. State, 91 S.W.3d 342, 347-48 (Tex.App.-Texarkana 2002, no pet.) (not limiting review of reasonableness of stop to violations officer cited; though officer testified stop was due to prohibition against "exhibition of acceleration,” stop was justified on basis of unsafe driving); State v. Salazar, No. 05-08-01511-CR, 2009 WL 2246133, at *2 (Tex.App.-Dallas July 29, 2009, no pet.) (mem. op., not designated for publication) (parking violation did not need to be mentioned in officer's report nor did it need to be officer’s primary basis for approaching defendant to supply the justification for the stop); Boyle v. State, No. 01-01-00405-CR, 2002 WL 1340322, at *1, 3 (Tex. App.-Houston [1st Dist.] June 20, 2002, no pet.) (op., not designated for publication) (reasonable suspicion for stop based on traveling in the left lane without passing another vehicle existed despite officer’s failure to articulate that reason as the basis of the stop). Even the United State Supreme Court recently noted that "the fact that the officer does not have the state of mind which is hypothe-cated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 594, 160 L.Ed.2d 537 (2004) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)).

      . The dissent states that the officers only observed Alderete’s vehicle for approximately thirty seconds; however, neither officer testified to how long they observed the vehicle.

      . We note that Alderete cites to two intermediate appellate court cases in her brief in asking us to uphold the trial court’s decision. However, those cases predate the Court of Criminal Appeals' decision in Curtis. Moreover, Alderete’s reliance on State v. Dixon, 206 S.W.3d 587, 588, 590-91 (Tex.Crim.App.2006), is also misplaced as the officers in that case did not stop the vehicle on suspicion of driving while intoxicated but rather based on a traffic-code violation, which was invalidated by the trial court, who did not believe the officers’ testimony and found that the turns made by the defendant were not unlawful.

      .The dissent argues that swerving within the lane is not a traffic offense, that an officer's graveyard shift is insufficient to conclude that most driving-while-intoxicated offenses occur at night, that the officer’s training in detecting drunk drivers was deficient as no evidence was presented as to the hours of training provided, the training involved, or how the training assisted in differentiating between drunk and sober drivers, and that although weaving is a characteristic of drunk driving, there was no other testimony that Alderete failed to maintain a steady speed, that she inappropriately applied her brakes, or that she drove erratically. Although the dissent states that he applied the totality-of-the-circumstances test, he has actually engaged in a divide-and-conquer approach arguing assumptions that were not presented to the trial court, which the United States Supreme Court and the Court of Criminal Appeals have condemned. See United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Garcia-Cantu, 253 S.W.3d at 244; Wiede v. State, 214 S.W.3d 17, 25 (Tex.Crim.App.2007). We therefore hold fast to our totality-of-circumstances analysis set out above.
      Moreover, we note that the trial court found the officers’ testimonies credible. This the trial court was entitled to do, and we, as a reviewing court, cannot deviate from that . finding but rather simply review whether the trial court properly applied the law to the facts. Ballman, 157 S.W.3d at 69. Therefore, the dissent cannot now suggest that the officers’ testimonies were lacking in their training and experience in detecting intoxicated drivers or what characteristics are associated with drunk driving.

      . In United States v. Cortez, the Supreme Court stated: "Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like 'articulable reasons' and 'founded suspicion' are not self-defining; they fall short of providing clear guidance disposi-tive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981) (citations omitted).

      . In considering the issue of one relevant factor out of many in the context of a transporting undocumented aliens case, the United States Supreme Court ruled that: "The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens." Brignoni-Ponce, 422 U.S. at 886-87, 95 S.Ct. at 2583.