NO. 07-01-0197-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
SEPTEMBER 20, 2002
______________________________
THE STATE OF TEXAS,
Appellant
v.
JAMES ROBERT GLEASON,
Appellee
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 41,827-A; HON. RICHARD DAMBOLD, PRESIDING
_______________________________
Before QUINN and JOHNSON, J.J., and BOYD, S.J.1
The State of Texas appeals from an order granting the motion of James Robert
Gleason (Gleason) to suppress evidence. The evidence sought to be suppressed was
obtained as a result of a traffic stop by a police officer. Through two points of error, the
State alleges that the trial court erred because it 1) “failed to consider all the evidence
presented” at the suppression hearing and 2) misapplied the law to the facts. We affirm.
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Joh n T . Boyd, Chief Justice (Re t.), Seventh Court of A ppe als, sitting by ass ignm ent. T ex. G ov’t
Code Ann. §75.0 02(a )(1) (V erno n Su pp. 2002 ).
Background
The only evidence offered at the suppression hearing consisted of testimony by
Officer Mike Martinez, i.e. the officer who stopped Gleason. According to the officer,
Gleason’s car had been “weaving from side to side inside the lane” as it drove down a four
lane road. The vehicle was then seen crossing over the yellow center-stripe which lay to
Gleason’s left and divided his lane from oncoming traffic. Gleason supposedly “corrected
his action and when he did so he crossed the white dotted line that separated” his lane
from the one to his right. Thereafter, Gleason allegedly traveled on for several blocks
before moving into the right hand lane, stopping at an intersection apparently requiring no
stop, and turning right. The officer testified that in completing the maneuver, Gleason
turned wide and ventured into the “oncoming traffic lane.”
Upon cross examination, however, the officer’s testimony changed. No longer did
he say that Gleason’s car crossed the yellow stripe. Instead, he admitted that it merely
“touched” the yellow line “momentarily” and then moved away from it without any “jerking”
motion. As to crossing the “white dotted line” to his right, the officer conceded that
Gleason did not do so until a block or more after the yellow line was momentarily touched
and that he recovered in a way which Martinez termed as “nothing notable.” Martinez also
stated that there was no other traffic about, that he did not feel himself in danger due to
Gleason’s driving, and that Gleason maintained a consistent speed within the limit
assigned to the road until effort was made to turn right. And, when that right turn was
attempted, Gleason activated his turn indicator to signal. Whether Gleason stopped before
turning then became the subject of a dispute, which dispute resulted in the officer stating
that he had testified in an administrative hearing that Gleason did not stop but merely
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slowed before turning. Finally, Martinez conceded that 1) the turn may have been wide to
avoid cars parked along the curb, though he could not recall if there were any such cars
present, 2) he stopped Gleason merely due to his alleged “failure to maintain a single
lane,” and 3) “based on everything [he] had observed . . . up to the point that [he] engaged
[his] emergency equipment . . . [he] did [not] have any suspicions about . . . [Gleason]
before approaching him.”
Upon hearing the evidence, the trial court stated that:
It appears that the reason for the stop was failure to drive in a single lane.
I cannot find a traffic violation on that based on the testimony. Apparently, if
he had crossed the double stripe that would have constituted a separate
violation, but it’s unclear to the Court that he crossed or merely touched it.
There are no inarticulable facts giving rise to a suspicion, because the officer
testified that he had no suspicions.
(Emphasis added). The court’s allusion to the want of suspicion on the part of the officer
was later memorialized in its findings of fact and conclusions of law. In them, the trial court
found, among other things, that Gleason had “momentarily touched the yellow line,”
crossed the white dotted line approximately a block to a block and a half after touching the
yellow line, and returned to his lane “without any notable observation.” So too did he find
that no one was in the lane to Gleason’s right when Gleason entered it, the extent to which
Gleason entered the lane to his right was unknown, the officer did not feel endangered by
Gleason’s conduct, the officer stopped Gleason solely for Gleason’s purported failure to
maintain a single lane, and the officer had “no other suspicion about the driver at the time
of the stop . . . .”
Standard of Review
The standard of review applicable to issues like that at bar is well-settled. Instead
of reiterating it, we cite the parties to State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000);
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Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App.1997); Benitez v. State, 5 S.W.3d 915
(Tex. App.--Amarillo 1999, pet. ref'd); and State v. Clemmer, 999 S.W.2d 903 (Tex.
App.--Amarillo 1999, pet. ref'd) for an explanation of it.
Application of Standard
Point One - Trial Court failed to consider all of the evidence.
As previously mentioned, the State initially contends that the trial court erred in
failing to consider all of the evidence before it. The evidence which it purportedly failed to
consider is that indicating Gleason turned in an illegal manner. Furthermore, the turn was
allegedly illegal because he failed to make it “as closely as practicable to the right-hand
curb or edge of the roadway.” See TEX . TRANSP . CODE ANN . §545.101(a) (Vernon 1999)
(stating that a right-hand turn must be made in that manner). And, had the trial court
considered that evidence, it would have been obligated to find that the officer had a
legitimate basis to stop Gleason, concludes the State. We overrule the point.
Needless to say, the trial court, as factfinder, was free to believe or disbelieve all or
any part of the testimony imparted by the sole witness. State v. Ross, 32 S.W.3d at 855.
This was especially so given that his testimony was not free from contradiction. Simply
put, because the officer contradicted or retracted his prior testimony in various material
ways while undergoing cross-examination, the trial court was free to discredit what the
officer said about the turn. So, contrary to the State’s supposition, it was not obligated to
consider that evidence. For us to hold otherwise would be for us to implicitly overrule the
holding by the Court of Criminal Appeals in Ross; that we cannot do.
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Or, it may be that the trial court believed the officer when he said that 1) he stopped
Gleason simply for failing to stay in one lane, 2) he did not suspect Gleason of anything
else, and 3) Gleason may have turned as he did to avoid cars parked along the curb.2
And, if the officer indicated that he did not interpret Gleason’s actions as violative of other
traffic regulations, the court was free to consider that assessment in resolving what actually
occurred. In short, it may be that the trial court actually considered that evidence and
reasonably interpreted it in a way other than that desired by the State.
Point Two - Trial Court’s failure to properly apply the law to the facts.
In its second and last issue, the State claims that the trial court misapplied the law.
That is, it believes that the trial court should have applied precedent involving stops
wherein an officer saw the detainee cross the yellow line dividing opposing lanes of traffic.
Instead, the court followed authority applicable to situations wherein an officer merely saw
the detainee weave within a lane of traffic in a safe manner. And, because the trial court
allegedly followed the wrong line of authority, it erred. We again overrule the point.
The precedent to which the State alluded is Texas Dept. Public Safety v. Chang,
994 S.W.2d 875 (Tex. App.–Austin 1999, no writ). There, the court held that the officer
had legitimate basis to stop Chang since Chang had crossed the center line of the
roadway. Id. at 877. Indeed, statute requires one operating a vehicle on a road having
four or more lanes “and providing for two-way movement” not to drive left of the center line,
except in certain situations. TEX . TRANSP . CODE ANN . 545.051(c). Yet, the trial court at bar
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The latter bit of evidence is of import given that the traffic regulation requ ires one to “turn as closely
as practicable to the right-hand curb or edge . . . .” T EX . T RANSP . C ODE A N N . 545 .101 (a) (V erno n 19 99). The
potentiality of cars being parked next to th e rig ht-hand curb could well have rendered an attempt to stay as
closely to the right-hand curb as practicable rather impracticable.
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found that Gleason merely touched the yellow centerline momentarily, not that he crossed
it. And, to the extent that it did not find that Gleason crossed it or otherwise drove left of
the center line, the holding in Chang is inapplicable to the circumstances before us.
Rather, our situation is akin to those in Hernandez v. State, 983 S.W.2d 867 (Tex.
App.–Austin 1998, pet. ref’d) and State v. Cerny, 28 S.W.3d 796 (Tex. App.–Corpus Christi
2000, no pet.). They held that drifting from a lane constitutes a violation of traffic
regulations, namely TEX . TRANSP . CODE ANN . §545.060(a), and justifies a stop when the
movement is unsafe or made in an unsafe manner. State v. Cerny, 28 S.W.3d at 801;
Hernandez v. State, 983 S.W.2d at 872-73. Yet, before us is no evidence of record
indicating that Gleason’s drift from his lane was unsafe or made in an unsafe manner.
Again, there were no other cars around save for the officer’s, and, the officer did not feel
himself endangered. Moreover, Gleason corrected the drift in a way which did not arouse
concern in the officer. Thus, the circumstances before the trial court fell within the ambit
of Hernandez and Cerny. So, it had legal and factual basis upon which to hold that the
traffic stop conducted by the officer was improper.
Accordingly, we affirm the order granting the motion to suppress. Pursuant to Rule
2 of the Rules of Appellate Procedure and in order to expedite the decision, we suspend
the operation of Rule 39.9 of the Rules of Appellate Procedure to permit submission of the
case prior to the expiration of the 21-day notice provided for in that rule.
Brian Quinn
Justice
Do not publish.
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