COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-183-CR
CHAD AVERY FOWLER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
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OPINION
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The question in this DWI case is whether a police officer has probable
cause or reasonable suspicion for a traffic stop when the officer observes the
the tires of the defendant’s vehicle cross into an adjacent same-direction lane
by a tire’s width a single time when there is no other traffic in the area. We
answer “no” and reverse the trial court’s judgment.
Background
On July 23, 2005, a little after midnight, Officer Patrick Knotts of the
Mansfield Police Department was driving directly behind Appellant’s pick-up
truck on Debbie Lane, a four-lane road divided by a median. Officer Knotts
testified that he observed the truck cross into an adjacent same-direction lane
by a tire’s width and that the truck drifted within its lane two more times,
touching the white line between the lanes.
Officer Knotts immediately initiated a traffic stop, and Appellant pulled
into a private driveway. According to Officer Knotts, when he asked Appellant
for his license and insurance information, Appellant acted strange, seemed
disoriented, and fumbled through his camera bag before pulling his wallet from
his shorts pocket. Officer Knotts also noticed that Appellant’s eyes were red,
glassy, and bloodshot. Appellant had a hard time concentrating and did not
properly respond to Officer Knotts’s questioning. Appellant told Officer Knotts
that he had consumed one twelve-ounce Keystone beer about an hour prior to
the stop. However, Officer Knotts found an open twelve-ounce Keystone beer
in the front passenger seat of Appellant’s truck, and the can was cold to the
touch.
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Officer Knotts asked Appellant to perform some field sobriety tests. On
the horizontal gaze nystagmus test, Officer Knotts observed a lack of smooth
pursuit in both eyes and four out of the six nystagmus clues. Appellant then
failed to maintain the mandated stance in the walk-and-turn test. He stated
that he could not perform the test because he was tired and refused to continue
the field sobriety tests all together. Appellant also refused to take a breath
test. Officer Knotts arrested Appellant for DWI due to the loss of use of his
mental and physical faculties.
Appellant sought to suppress all evidence from the traffic stop. The trial
court held a hearing on his motion to suppress after jury selection but before
the presentation of evidence. At the conclusion of the hearing, the trial court
denied Appellant’s motion to suppress. A jury convicted Appellant of DWI and
sentenced him to twenty-five days’ confinement and a fine of $650. This
appeal followed.
Discussion
In two points, Appellant argues that the trial court erred in denying his
motion to suppress because Officer Knotts had no probable cause or reasonable
suspicion to justify the initial traffic stop. The State argues that Officer Knotts
3
had reasonable suspicion that Appellant had violated section 545.060(a) of the
Texas Transportation Code. 1
1. Standard of Review
Generally, we review a trial court’s ruling on a motion to suppress
evidence under a bifurcated standard of review. Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85,
89 (Tex. Crim. App. 1997). In reviewing the trial court’s decision, we do not
engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543
(Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort
Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the
credibility of the witnesses and the weight to be given their testimony. State
v. Ross, 32 S.W .3d 853, 855 (Tex. Crim. App. 2000); State v. Ballard, 987
S.W.2d 889, 891 (Tex. Crim. App. 1999). Therefore, we give almost total
deference to the trial court’s rulings on (1) questions of historical fact, even if
the trial court’s determination of those facts was not based on an evaluation of
credibility and demeanor, and (2) application-of-law-to-fact questions that turn
on an evaluation of credibility and demeanor. Montanez v. State, 195 S.W.3d
101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644,
1
… On appeal, the State does not argue that Officer Knotts had probable
cause for the stop.
4
652-53 (Tex. Crim. App. 2002); State v. Ballman, 157 S.W.3d 65, 68 (Tex.
App.—Fort Worth 2004, pet. ref’d). But when the trial court’s rulings do not
turn on the credibility and demeanor of the witnesses, we review de novo a trial
court’s rulings on mixed questions of law and fact. Estrada v. State, 154
S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.
The historical facts in this case are not disputed; therefore, we review the ruling
on the motion to suppress de novo. See Oles v. State, 993 S.W.2d 103, 106
(Tex. Crim. App. 1999).
2. Suppression Hearing Testimony
Officer Knotts was the State’s only witness at the suppression hearing.
He testified, in relevant part, as follows:
Q. Okay. And around 12:25 a.m., did you observe anything out
of the ordinary?
A. I observed a white vehicle commit -- a white truck commit a
traffic violation, and it caught my attention.
Q. Okay. And what was that traffic violation?
A. Failed to drive in a single lane of traffic.
Q. Okay. Could you describe for the Judge exactly how the
vehicle failed to maintain a single lane of traffic?
A. Sure. The vehicle was observed traveling eastbound on Debbie
Lane. It crossed the white line, approximately a tire’s width, and
then it drifted over and touched the white line two more times.
5
....
Q. And you also testified the sole reason why you stopped that
vehicle was for failure to maintain a single lane of traffic.
A. That’s correct.
Q. You also testified that you observed the vehicle cross over the
white line one time, approximately a tire’s width --
A. Correct.
Q. -- and then drift within its lane two other times --
A. And touch the white line.
Q. -- and touch the white line. Okay.
....
Q. Do you recall what block number that was, approximately?
A. The violation was in the 100 block.
....
Q. And where did you effectuate the traffic stop?
A. The vehicle stopped in the 200 block of Debbie, East Debbie.
Q. So approximately a one-block period?
A. Correct.
....
Q. So nothing was dangerous about moving over that line?
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A. No vehicles were almost struck, so, no.
....
Q. Okay. Could you tell the Court the Transportation Code
definition of “failure to maintain a single lane”?
A. If vehicles do not -- the vehicle has to travel within the lane of
traffic; then, if it’s going to change lanes, it needs to signal that
lane-change. He never signaled any lane-change, so that would be
what I based the traffic stop off of.
Q. And that’s your understanding of the Transportation Code
definition?
A. Failure to maintain a single lane of traffic while operating a
motor vehicle.
Q. Okay. Did the vehicle commit any other traffic violations other
than crossing that line one time?
A. No.
Q. Did you observe any incident that came close to causing an
accident or was unsafe, in any manner, in that regard?
A. No.
Officer Knotts also testified that there was not a vehicle in the adjacent lane
when Appellant’s tires crossed the line and that his vehicle did not strike the
curb when it crossed the line.
7
3. Reasonable Suspicion
In his second point, Appellant argues that Officer Knotts illegally seized
him by stopping him without reasonable suspicion that he was, had been, or
soon would be engaged in criminal activity. We will consider this point first
because if the stop was unjustified by reasonable suspicion, then it was also
unjustified under the more stringent standard of probable cause. See Klare v.
State, 76 S.W.3d 68, 75 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
The Fourth Amendment2 protects against unreasonable searches and
seizures. U.S. C ONST. amend. IV. To suppress evidence because of an alleged
Fourth Amendment violation, the defendant bears the initial burden of producing
evidence that rebuts the presumption of proper police conduct. Torres v. State,
182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488,
492 (Tex. Crim. App. 2005). A defendant satisfies this burden by establishing
that a search or seizure occurred without a warrant. Torres, 182 S.W.3d at
902; Ford, 158 S.W.3d at 492. Once the defendant has made this
2
… Where, as in this case, the appellant has not separately briefed state
and federal constitutional claims, we assume that the appellant claims no
greater protection under the state constitution than that provided by the federal
constitution. Varnes v. State, 63 S.W.3d 824, 829 (Tex. App.—Houston [14th
Dist.] 2001, no pet.). Therefore, we will analyze Appellant’s claim solely under
the Fourth Amendment of the United States Constitution, following guidelines
set by the United States Supreme Court in interpreting the Fourth Amendment.
See State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App. 1998).
8
showing, the burden of proof shifts to the State, which must then
establish that the government agent conducted the search or seizure pursuant
to a warrant or that the agent acted reasonably. Torres, 182 S.W.3d at 902;
Ford, 158 S.W.3d at 492.
The Supreme Court has held that a detention is reasonable under the
Fourth Amendment if the government agent reasonably suspects a person of
engaging in criminal activity. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868,
1880 (1968); Carmouche, 10 S.W.3d at 328.3 Reasonable suspicion exists
when, based on the totality of the circumstances, the officer has specific,
articulable facts that when combined with rational inferences from those facts,
would lead the officer to reasonably conclude that a particular person is, has
been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at
492–93. This is an objective standard that disregards any subjective intent of
the officer making the stop and looks solely to whether an objective basis for
the stop exists. Id. at 492.
3
… Because a routine traffic stop typically involves only a short,
investigative detention, as opposed to a custodial arrest, we analyze traffic
stops under the principles developed for investigative detentions set forth in
Terry v. Ohio. 392 U.S. at 22, 88 S. Ct. at 1880; see Berkemer v. McCarty,
468 U.S. 420, 104 S. Ct. 3138 (1984); Martinez v. State, 236 S.W.3d 361,
369 (Tex. App.—Fort Worth 2007, no pet.).
9
a. Section 545.060(a) of the Texas Transportation Code
Officer Knotts testified that he stopped Appellant because he observed
Appellant failing to maintain a single lane of traffic. The relevant provision of
the transportation code—section 545.060(a)—provides as follows:
(a) An operator on a roadway divided into two or more clearly
marked lanes for traffic:
(1) shall drive as nearly as practical entirely within a single
lane; and
(2) may not move from the lane unless that movement can
be made safely.
T EX. T RANSP. C ODE A NN. § 545.060(a) (Vernon 1999) (emphasis added).
Although the statute has two subparts, it does not create two separate
offenses, but rather only one: moving out of a marked lane when it is not safe
to do so. Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.—Austin 1998,
pet. ref’d). In Hernandez, the Austin court analyzed the legislative history of
section 545.060 and determined that because neither section 545.060 nor its
predecessor created two offenses, the words “unless that movement can be
made safely” necessarily modify both subsections, adding,
[T]he very vagueness of the requirement that the operator of a
vehicle drive within a single lane “as nearly as practical” indicates
that the legislature did not intend for the initial clause of the statute
to create a discrete offense apart from some element of unsafety.
This conclusion is bolstered by the use of the term “practical”
10
rather than “practicable.” The latter term has a somewhat more
definite meaning: “capable of being accomplished; feasible;
possible,” while the former term is more ambiguous: “manifested
in practice; capable of being put to good use.” Bryan A. Garner, A
Dictionary of Modern Legal Usage 678 (2d ed.1995).
Id.
Thus, the Hernandez court held that a vehicle’s slow drift until two of its
tires crossed into another same-direction lane, at an hour when there were few
other cars about, did not give rise to a reasonable suspicion of criminal activity
because the State presented no evidence that the driver’s failure to drive in a
single lane was unsafe or dangerous. Id. at 869–70, 872. Many other courts
have reached the same conclusion under similar facts. See, e.g., State v.
Huddleston, 164 S.W.3d 711, 713–14 (Tex. App.—Austin 2005, no pet.)
(holding officer lacked reasonable suspicion of violation of section 545.060
when he saw car slowly drift over fog line by a few inches five times over five
to six miles while traveling one to eight miles per hour under speed limit);
Eichler v. State, 117 S.W.3d 897, 898 (Tex. App.—Houston [14th Dist.] 2003,
no pet.) (holding no reasonable suspicion when car crossed line between middle
and fast lanes once on interstate highway in light traffic at 12:30 a.m.); Bass
v. State, 64 S.W.3d 646, 649–50 (Tex. App.—Texarkana 2001, pet. ref’d)
(holding no reasonable suspicion existed when car swerved within and outside
11
its lane over two and one-half to three miles and was passed by other vehicles);
Corbin v. State, 33 S.W.3d 90, 94 (Tex. App.—Texarkana 2000), rev’d on
other grounds, 85 S.W.3d 272 (Tex. Crim. App. 2002) (holding no reasonable
suspicion existed when in course of twenty feet, defendant drove thirteen miles
per hour under speed limit and crossed over fog line once before driving one
mile with no further infractions); State v. Cerny, 28 S.W.3d 796, 798 (Tex.
App.—Corpus Christi 2000, no pet.) (holding no reasonable suspicion existed
when car “just barely” swerved into shoulder of lane of oncoming traffic, then
swerved over inside fog line three to four times); State v. Arriaga, 5 S.W.3d
804, 805 (Tex. App.—San Antonio 1999, pet. ref’d) (holding no reasonable
suspicion existed when van drifted toward center divider—but within lane—two
to seven times near nightclub around 1:50 a.m.); State v. Tarvin, 972 S.W.2d
910, 911 (Tex. App.—Waco 1998, pet. ref’d) (holding no reasonable suspicion
existed when car drifted over outside fog line two to three times at 2:00 a.m.
near nightclub).
By contrast, in those cases where courts have held that a driver’s failure
to maintain a single lane triggered a reasonable suspicion that the driver had
violated section 545.060, the failure to drive in a single lane was coupled with
some other factor that indicated danger or a lack of safety, such as the driver’s
12
leaving a bar, driving in heavy traffic, crossing into a lane of oncoming traffic,
or weaving over an extended distance or time. See, e.g., Tyler v. State, 161
S.W.3d 745, 746 (Tex. App.—Fort Worth 2005, no pet.) (holding reasonable
suspicion existed when police stopped driver after anonymous tip of erratic
driving and weaving in heavy traffic on Thanksgiving weekend); Cook v. State,
63 S.W.3d 924, 926–27 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)
(holding reasonable suspicion existed when car sped out of bar parking lot,
suspiciously pulled into gas station for ten to fifteen seconds, then drove “all
over” two unmarked roads before “constantly” crossing into other lane for
about two minutes on marked lane-divided road); Griffin v. State, 54 S.W.3d
820, 821 (Tex. App.—Texarkana 2001, pet. ref’d) (holding reasonable
suspicion existed when, after receiving informant tip that defendant would be
carrying heroin, officer saw defendant’s car cross yellow line into lane of
oncoming traffic); Martinez v. State, 29 S.W.3d 609, 610 (Tex. App.—Houston
[1st Dist.] 2000, pet. ref’d) (holding reasonable suspicion existed when car
drifted onto shoulder for only a few seconds, but on freeway during busy
traffic); Tex. Dep’t of Pub. Safety v. Bell, 11 S.W.3d 282, 282–83 (Tex.
App.—San Antonio 1999, no pet.) (holding reasonable suspicion existed when
car crossed into shoulder of lane of oncoming traffic); Gajewski v. State, 944
13
S.W.2d 450, 451 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (holding
reasonable suspicion existed when on two-lane highway, one-third of car
crossed into oncoming lane two to three times).
In this case, there is no evidence that Appellant’s failure to drive in a
single lane was unsafe. The specific facts articulated by Officer Knotts show
that two of Appellant’s tires drifted into an adjacent same-direction lane one
time and by no more than a tire’s width. There was no other vehicle in the lane
next to Appellant, and Officer Knotts expressly stated that the movement of
Appellant’s truck was not unsafe or dangerous. Absent from Officer Knott’s
testimony are any of the factors present in the cases cited above where courts
found a reasonable suspicion that a driver had violated section 545.060, such
as a driver’s crossing the center line into oncoming traffic.
The State argues that because Officer Knotts believed that Appellant had
committed an act that Officer Knotts believed was prohibited by the
transportation code, he had reasonable suspicion to stop Appellant. The State
relies on a series of cases, some from this court, for the proposition that the
State is not required to prove a defendant violated a traffic law but only needs
to elicit testimony that the officer reasonably suspected that a defendant
violated a traffic law. See McQuarters v. State, 58 S.W.3d 250, 255 (Tex.
14
App.—Fort Worth 2001, pet. ref’d); see also Garcia v. State, 43 S.W.3d 527,
530 (Tex. Crim. App. 2001).
Officer Knotts testified that in his “understanding” of the transportation
code, a driver commits an offense merely by failing to maintain a single lane of
traffic and that if a driver intends to change lanes, he needs to signal that lane
change.4 There is no evidence that Appellant “changed lanes” or intended to
change lanes; thus, his failure to activate his turn signal could not provide a
reasonable suspicion for the stop. That leaves Officer Knotts’s “understanding”
of what constitutes a violation of section 545.060(a) as the only possible basis
for the stop. As our foregoing analysis of the statute and case law shows,
Officer Knotts’s understanding was wrong.
An officer’s reasonable suspicion of an alleged traffic violation cannot be
based on a mistaken understanding of traffic laws. United States v. Granado,
302 F.3d 421, 423 (5th Cir. 2002); Goudeau v. State, 209 S.W.3d 713, 716
(Tex. App.—Houston [14th Dist.] 2006, no pet.). And an officer’s honest but
mistaken understanding of the traffic law which prompted a stop is not an
exception to the reasonable suspicion requirement. Goudeau, 209 S.W.3d at
4
… See T EX. T RANSP. C ODE A NN. § 545.104(a) (Vernon 1999) (“An
operator shall use the [turn] signal . . . to indicate an intention to turn, change
lanes, or start from a parked position.”).
15
716. Thus, Officer Knotts’s misunderstanding that section 545.060(a) requires
only crossing of the lane line—regardless of whether it is unsafe or dangerous
to do so—will not support a reasonable suspicion.
McQuarters and the other cases cited by the State do not change this
result. McQuarters cites Garcia for the proposition that “the State was not
required to prove appellant violated a traffic law. The State only needed to elicit
testimony that [the police officer] knew sufficient facts to reasonably suspect
that appellant had violated a traffic law.” 58 S.W.3d at 255. In the relevant
portion of Garcia, the court of criminal appeals stated that “[t]he State is
correct that it need not establish with absolute certainty that a crime has
occurred in order to show reasonable suspicion.” 43 S.W.3d at 530. Neither
case holds or even suggests that an officer’s ignorance of the law will
somehow satisfy the Fourth Amendment and rise to the level of reasonable
suspicion. To so hold would transform the Fourth Amendment’s objective
standard into a subjective standard dependent on the whims of the police’s
“understanding” of the law.
We hold that Officer Knotts failed to articulate specific facts that support
a reasonable suspicion that Appellant had violated section 545.060(a). See
Ford, 158 S.W.3d at 492–93. We therefore hold that there was no reasonable
16
suspicion for the initial stop and that the trial court erred by failing to suppress
the evidence developed during the stop. We sustain Appellant’s second point.
Because the State failed to carry its burden of showing a reasonable
suspicion, it also failed to carry the heavier burden to show probable cause for
the stop, and we sustain Appellant’s first issue. See Klare, 76 S.W.3d at 75.
Conclusion
Having sustained both of Appellant’s points, we reverse the trial court’s
judgment and remand this case to the trial court for further proceedings.
ANNE GARDNER
JUSTICE
EN BANC
MCCOY, J. filed a concurring opinion.
PUBLISH
DELIVERED: August 14, 2008
17
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-183-CR
CHAD AVERY FOWLER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
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CONCURRING OPINION
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I agree with the result reached by the majority in this case but do not
agree with one aspect of their reasoning. As recounted by the majority, section
545.060(a) of the Transportation Code reads as follows:
(a) An operator on a roadway divided into two or more clearly
marked lanes for traffic:
(1) shall drive as nearly as practical entirely within a single
lane; and
(2) may not move from the lane unless that movement can
be made safely.
T EX. T RANSP. C ODE A NN. § 545.060(a) (Vernon 1999). I cannot agree that the
phrase “unless that movement can be made safely” modifies both subsections
(1) and (2), as held by the majority, for the following reasons: (1) section (a)
is clearly separated into two discrete sections, (1) and (2), and the language in
question is clearly contained solely within the second section; (2) the separate
and independent nature of the sections is emphasized by the semicolon
separating the sections; (3) the term “movement” is clearly referring to the
word “move” three words before the phrase begins, and that word is not
contained in subsection (1); (4) if the phrase is added to the first subsection,
which it purports to modify, the initial subsection would read: “shall drive as
nearly as practical entirely within a single lane unless that movement can be
made safely”--this is jabberwocky.5
Nevertheless, I reluctantly agree that section (a) of the Transportation
Code contains but one offense, enumerated as subsections (1) and (2), and that
the tsunami of case law requiring some other endangering factor, besides the
5
… See L EWIS C ARROLL, J ABBERWOCKY AND O THER P OEMS 17 (Courier Dover
Publications 2001).
2
failure to drive in a single lane, to be a violation of the statute, is correct.
Hence, I concur in the outcome as determined by the majority.
BOB MCCOY
JUSTICE
PUBLISH
DELIVERED: August 14, 2008
3