In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00132-CR
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THE STATE OF TEXAS, Appellant
V.
JARED EUGENE VICTORIA, Appellee
________________________________________________________________________
On Appeal from the County Court at Law No. 5
Montgomery County, Texas
Trial Cause No. 12-281209
________________________________________________________________________
MEMORANDUM OPINION
The trial court suppressed evidence from a traffic stop in a DWI case. The
State appealed. We affirm.
BACKGROUND
Appellee, Jared Eugene Victoria, was arrested and charged with DWI after
he was pulled over by Trooper Cody Cullar pursuant to a traffic stop. Victoria
filed a motion to suppress evidence obtained during the traffic stop. Trooper
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Cullar was the only witness who testified at the hearing. Trooper Cullar testified
that he initiated the traffic stop after he observed Victoria‟s vehicle cross the white
fog line and drive onto the improved shoulder. Cullar observed Victoria move
onto the shoulder as two on-coming vehicles passed by him. Cullar reasoned that
it was not necessary for Victoria to drive onto the improved shoulder to avoid a
collision or for any other reason. The video of the stop from Cullar‟s police
dashcam was admitted into evidence and viewed by the trial court.
After hearing the testimony and viewing the video, the trial court granted
Victoria‟s motion to suppress. The trial court entered separate findings of fact and
conclusions of law. The State filed a notice of appeal. On appeal, the State argues
that the trial court abused its discretion in finding that Victoria did not violate the
provisions of section 545.058(a) of the Texas Transportation Code because the
evidence established that Victoria‟s movement onto the improved shoulder was not
for one of the seven enumerated reasons for which a person may lawfully do so.
See generally Tex. Transp. Code Ann. § 545.058(a) (West 2011).
APPLICABLE LAW & ANALYSIS
An officer may lawfully stop a driver when the officer has probable cause to
believe the driver has committed a traffic violation. Walter v. State, 28 S.W.3d
538, 542 (Tex. Crim. App. 2000). An officer may also make a lawful traffic stop if
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he has reasonable suspicion to believe that an individual is violating the law.
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011); Ford v.
State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “A police officer has
reasonable suspicion to detain if he has specific, articulable facts that, combined
with rational inferences from those facts, would lead him reasonably to conclude
that the person detained is, has been, or soon will be engaged in criminal activity.”
Derichsweiler, 348 S.W.3d at 914. This is an objective standard that disregards an
officer‟s subjective intent, and instead, considers whether the totality of the
circumstances provide an objective justifiable basis for the stop. Id.; see also
Garcia v. State, 827 S.W.2d 937, 944-45 (Tex. Crim. App. 1992). Thus, in making
a determination regarding whether reasonable suspicion for the stop existed, the
pertinent question is whether a reasonable officer in the same situation would
believe a crime had been or was being committed. State v. Duran, No. PD-0771-
12, 2013 WL 1628957, *3 (Tex. Crim. App. Apr. 17, 2013); see also Davis v.
State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).
In reviewing a trial court‟s ruling on a motion to suppress, we afford “almost
total deference” to the trial court‟s fact findings that are supported by the record.
Duran, 2013 WL 1628957, at *3; State v. Weaver, 349 S.W.3d 521, 525 (Tex.
Crim. App. 2011); State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App.
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2011). The same deference applies to a trial court‟s determination of historical
facts based on a videotape recording admitted in evidence. Duran, 2013 WL
1628957, at *3; Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006). In
determining whether the trial court‟s fact findings are supported by the evidence,
we view the evidence in the light most favorable to the trial court‟s ruling. State v.
Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). “The winning side is
afforded the „strongest legitimate view of the evidence‟ as well as all reasonable
inferences that can be derived from it.” Duran, 2013 WL 1628957, at *4. We
apply the same deferential standard of review to the trial court‟s ruling on “„mixed
questions of law and fact‟” when resolution of those issues turn on an evaluation of
credibility and demeanor. Amador, 221 S.W.3d at 673. We review the trial court‟s
application of the law to the facts de novo, and will affirm the trial court‟s ruling if
it is reasonably supported by the record and is correct on any applicable theory of
law. Duran, 2013 WL 1628957, at *4; Weaver, 349 S.W.3d at 525.
Section 545.058(a) of the Texas Transportation Code provides as follows:
(a) An operator may drive on an improved shoulder to the right of the
main traveled portion of a roadway if that operation is necessary and
may be done safely, but only:
(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of traffic;
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(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped . . . ;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control device; or
(7) to avoid a collision.
Tex. Transp. Code Ann. § 545.058(a).
The trial court heard Trooper Cullar‟s testimony and viewed the police
dashcam video of the purported traffic violation and subsequent traffic stop. In its
findings of fact, the trial court found that “two vehicles approached, eastbound
(traveling in the direction of Defendant) in the proper lane of traffic[,]” and “[j]ust
as the two vehicles approached and passed Defendant‟s vehicle, his two passenger
side tires appear to cross the white fog []line onto the improved shoulder.” The
trial court further found, “[o]nce the two vehicles are completely past Defendant,
his vehicle returns to the proper lane of traffic and continues in a safe manner[,]”
and “[t]he Defendant‟s action of crossing the fog-line, onto the improved shoulder,
appeared to be done out of necessity, safely and perhaps, to avoid a collision.”
Additionally, the trial court stated in its findings of fact that the time of night,
speed limit, and lack of a middle turn lane “all add[ed] to the prudence of
[Defendant‟s] action of easing his vehicle partially onto the shoulder as [the two
vehicles] passed.”
The trial court made the following conclusions of law:
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1. Defendant‟s action of easing his vehicle across the fog line, onto
the improved shoulder was not a clear violation of Texas
Transportation Code §545.058 as it appears his actions were
intentional, calculated to avoid, (or distance himself from)
oncoming traffic on a two-lane, divided highway with a posted
speed limit of 45 miles per hour.
2. No other violation of any state law, which would have justified
stopping Defendant were noted, testified to or visible on the video,
introduced in evidence at the hearing.
In its brief, the State emphasizes the trial court‟s use of the word “perhaps”
in its findings that Victoria‟s crossing the fog line onto the improved shoulder
“appeared to be done out of necessity, safely and perhaps, to avoid a collision.”
But, the Texas Court of Criminal Appeals recently explained that fact findings are
not to be “considered piecemeal” but in their totality. Duran, 2013 WL 1628957,
at *4. The totality of the trial court‟s findings, based on both Cullar‟s testimony
and the video, support a reasonable conclusion that the trial court disbelieved
Cullar‟s testimony that it was not necessary for Victoria to move onto the
improved shoulder to avoid a collision. We must give the appropriate deference to
the trial court‟s fact findings that are supported by the record. See id. at * 3-5; see
also Weaver, 349 S.W.3d at 525.
Based on our review of the record, the trial court reasonably could have
concluded that Victoria drove onto the improved shoulder out of necessity and in a
safe manner to avoid a collision with the two on-coming vehicles and that it was
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not reasonable for Trooper Cullar to conclude that the driver committed a traffic
violation. Because the record supports the trial judge‟s findings, we uphold the
trial court‟s ruling granting the motion to suppress.
AFFIRMED.
__________________________
CHARLES KREGER
Justice
Submitted on May 29, 2013
Opinion Delivered June 12, 2013
Do not publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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