Opinion
NO. PD-0037-22
02-14-2024
Bernard DANIEL, Appellant v. The STATE of Texas, Appellee
Stacey M. Soule, Austin, for Appellee. Erika Copeland, Abilene, for Appellant.
ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS, BELL COUNTY
Stacey M. Soule, Austin, for Appellee.
Erika Copeland, Abilene, for Appellant.
OPINION
McClure, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Richardson, Newell, Keel and Slaughter, JJ., joined.
The State asks whether a mistake of law should apply whenever an officer conducts a search or seizure under an ambiguous law that a majority of this Court had not yet construed, notwithstanding negative precedent in the controlling appellate jurisdiction. We hold the answer to that question is, yes. The officer’s reasonable misinterpretation of state criminal law did not undermine the reasonable suspicion required to conduct the traffic stop.
BACKGROUND
Appellant filed a pre-trial motion to suppress based on the argument that the officer did not have reasonable suspicion that Appellant was driving while intoxicated. Killeen Police Department Officer John Todd testified that around three in the morning on April 15, 2017, he stopped Appellant for failing to remain in a single lane of traffic. Todd testified that he saw Appellant’s vehicle cross the dotted white line dividing the outer lanes from the inner lanes three times. A dashcam video recording shows one of these instances where Appellant veers out of his lane as he navigates a left turn at an intersection. This initial crossing during the turn is plainly visible on the video, but the officer agreed it is difficult to see on the video how Appellant was driving as he got further from the patrol vehicle. There were no other cars near the Appellant’s vehicle nor did there appear to be anything else unsafe about Appellant’s driving.
Officer Todd initiated a traffic stop. Once the officer approached Appellant, he smelled alcohol on Appellant’s breath. Appellant admitted he had been drinking but refused to give a breath sample and refused to participate in all the roadside tests offered. After the officer observed a total of six clues of intoxication, he obtained a warrant for a blood sample. The test results showed Appellant’s blood alcohol content was .174. Based on his criminal history, and the events of that morning, Appellant was indicted for felony driving while intoxicated.
During the suppression hearing, Appellant argued that a violation of the failure to maintain a single lane statute, Section 545.060(a) of the Texas Transportation Code, requires the motorist to have strayed from his lane when it was not safe to do so. The State disagreed, noting that the video showed "a very clear failure to maintain a single lane during a left turn," and that this was "a clear violation of the law." According to the State, his car went almost entirely into the inside lane as he entered the roadway.
The trial court denied Appellant’s motion, finding that Appellant "turned left and did not remain within his single marked lane"; that "Officer Todd followed to make an investigatory stop"; and that "he indicated that he saw two more instances ,of not maintaining a single marked lane before the stop which were not unsafe." The trial court concluded that "a warrantless stop was made upon probable cause [sic] which lead [sic] to [Appellant’s] arrest and detention for DWI".
DIRECT APPEAL
On appeal, Appellant challenged the denial of his motion to suppress. The Third Court of Appeals agreed with Appellant and reversed the judgment of conviction; The court below decided this case prior to this Court’s opinion in State v. Hardin, 664 S.W.3d 867 (2022)(holding that subsection (a) of Section 545.060(a) of the Transportation Code creates, only one offense and that it is not a traffic violation to fail to maintain a single marked, lane of traffic if such failure does not occur in an unsafe manner). Therefore, the court of appeals resolved that it was bound by its own prior decision in Hernandez v. State, 983 S.W.2d 867 (Tex. App.—Austin 1998, pet. ref'd) and reversed Appellant’s conviction.
HISTORY OF THE INTERPRETATION OF § 545.060(a): THE FAILURE-TO-MAINTAIN-SINGLE-LANE
The basis offered by the State for the stop of Appellant’s vehicle was that the officer had reasonable suspicion that Appellant violated Section 545.060 of the Texas Transportation Code. That section provides, in pertinent part:
(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.
Tex Transp. Code Ann. § 545.060.
Since its enactment in 1995, interpretations of the failure-to-maintain-single-lane statute (Section 545.060 of the Transportation Code) have varied amongst the intermediate courts.
The First, Second, Third, Fourth, Sixth, Ninth, Thirteenth, and Fourteenth Courts of Appeals read the failure to maintain a single lane statute as requiring both: (1) the failure to drive "as nearly as practical" in a single lane and (2) unsafe movement when moving from a single lane. See Munoz v. State, 649 S.W.3d 813, 818 (Tex. App.—Houston [1st] 2022); Fowler v. State, 266 S.W.3d 498, 502 (Tex. App.—Fort Worth 2008, pet. ref'd) ("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."); Marrero v. State, No. 03-14-00033-CR, 2016 WL 240908, at, *3 (Tex. App.—Austin Jan. 14, 2016, no pet.) (mem. op., not designated for publication); Daniel v. State, 641 S.W.3d 486, 493-94 (Tex. App.—Austin 2021); State v. Arriaga, 5 S.W.3d 804, 806-07 (Tex. App.—San Antonio 1999, pet. ref'd); Curtis v. State, 209 S.W.3d 688, 693-94 (Tex. App.—Texarkana 2006), rev’d on other grounds, Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007); Ehrhart v. State, 9 S.W.3d 929, 930-31 (Tex. App.—Beaumont 2000, no pet.); State v. Hardin, No. 13-18-00244-CR, 2019 WL 3484428, at *3 (Tex. App.—Corpus Christi Aug. 1, 2019), rev’d by State v. Hardin, 664 S.W.3d 867 (Tex. Crim. App. 2022); State v. Bernard, 503 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2016), judgment vacated on other grounds, 512 S.W.3d 351 (Tex. Crim. App. 2017).
Alternatively, the Seventh, Eighth, Tenth; Eleventh, and Twelfth Courts of Appeals have interpreted subsection (a) as setting forth two offenses instead of one. Wilde v. State, No. 07-15-00432-CR, 2016 WL 3180290, at *3 (Tex. App.—Amarillo June 3, 2016, no pet.)(not designated for publication); Reyes v. State, 608 S.W.3d 543, 549 (Tex. App. El Paso 2020, no pet. h.); Meras v. State, 629 S.W.3d 284 (Tex. App.—Waco 2020), rev’d by State v. Meras, 665 S.W.3d 604, 605 (Tex. Crim. App. 2023); Tex. Dep’t of Pub. Safety v. Ardoin, 515 S.W.3d 910, 915 (Tex. App.—Eastland 2017, no pet.); State v. Virginia South, No. 12-17-00176 CR, 2018 WL 686085, at *4 (Tex. App.—Tyler Jan. 31, 2018, pet. ref'd) (not designated for publication); State v. Virginia South, No. 12-17-00176-CR, 2018 WL 636085, at *4 (Tex. App.—Tyler Jan. 31, 2018, pet. ref'd) (not designated for publication).
Hernandez - The Third Court of Appeals holds that § 545.060(a) creates a single offense.
In Hernandez, the State contended that a driver’s "drift" across a lane marker into another lane of traffic traveling in the same direction, without any evidence that the drifting was unsafe, gave an officer reasonable suspicion to believe that the driver had violated Section 545.060(a). Id. at 869-70. The Third Court of Appeals concluded that it did not. Id. at 871. Therefore, it decided that Section 545.060(a) creates a single offense and that no violation occurs without unsafe movement. Id. This Court declined to exercise discretionary review of that court’s decision.
Leming - A fractured Court of Criminal Appeals split in its statutory interpretation of § 545.060(a).
In Hardin, the Court first noted the distinction between a plurality opinion and a fractured opinion, and then classified Leming as the latter. Hardin, 664 S.W.3d at fn. 35 (stating that Leming "resulted in a tie with neither of the two opposing viewpoints gaining a plurality.")
Sections 542.301 and 545.060 are both located within Title 7, Subtitle C, of the Texas Transportation Code, which is called "Rules of the Road[.]"
Majority op. at 782-83.
Eighteen years later, four judges on this Court rejected the Third Court’s reasoning in Hernandez, construing Section 545.060(a) as creating two separate offenses:
it is an offense to change marked lanes when it is unsafe to do so; but it is also an independent offense to fail to remain entirely within a marked lane of traffic so long as it remains practical to do so, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe.
Leming v. State, 493 S.W.3d 552, 559-60 (Tex. Crim. App. 2016)(Opinion Part II by Yeary, J., joined by Keller, P.J., Meyers and Richardson, JJ.).
Hardin - The Court of Criminal Appeals formally and authoritatively settles the debate: § 545.060(a) establishes a single offense , not two.
In Hardin, this Court held that the officer had no reasonable suspicion to stop the defendant when her vehicle’s right rear tire briefly touched the dividing line between the center and right lane of traffic because the State did not prove that the movement was unsafe. When analyzing § 545.060(a)’s text, the Court remarked that the operative terms of the statute—"nearly," "practical," and "safely"—are "clear and unambiguous" and recognized that the dispute is over the number of offenses. Hardin, 664 S.W.3d at 873-74. Considering both subsections, the Court determined that a two-offense construction would render subsection (a)(1) unconstitutionally vague and (a)(2) meaningless. Id. at 875.
The Hardin Court distinguished the factual scenario presented in that case from the basis of the stop in Leming, noting that the officer in Leming had reasonable suspicion to stop the defendant for driving while intoxicated regardless of whether he had failed to maintain a single lane. Id. at 878.
Judge Slaughter wrote separately to suggest that mistake of law would apply, however, the State failed to raise the argument. Id. at 879-882. She also noted that reasonable minds can disagree as to the meaning of the language in the statute and pointed to the dissent. Id. at 881. She further noted that there existed legitimate disagreements among Texas courts as to the statutory interpretation which shows that the law was not as clear as the majority suggests. Id. And as Judge Slaughter recognized, the Fifth Circuit has applied mistake of law to § 545.060(a) in U.S. v. Valenzuela-Godinez, 816 Fed. App’x 914 (5th Cir. 2020) (not designated for publication). There, the Fifth Circuit reasoned: "In light of the statute’s ambiguous text, coupled with the clear divide among Texas courts over its meaning, we hold that [officer’s] belief that Valenzuela-Godinez broke the law by failing to maintain a single lane of traffic, even if mistaken, was objectively reasonable. Id. at 918.
CURRENT APPLICATION
Which brings us now to the case at hand. Because the Third Court of Appeals decided the instant case prior to this Court’s decision in Hardin, the court below relied on its prior panel decision in Hernandez and held that the stop was unlawful because Appellant’s failure to maintain a lane was not also unsafe. Daniel, 641 S.W.3d at 493-94. However, the majority rejected the State’s mistake-of-law argument based on the conflict between Leming and Hernandez. Id. at 494-95. It reasoned that, in the absence of binding precedent from this Court overruling Hernandez, an officer acting in the Austin court’s appellate jurisdiction could not have been reasonably mistaken.
Justice Goodwin dissented. While she acknowledged that Leming did not overrule Hernandez, she contended that an officer’s adherence to the plurality’s construction of the statute in Leming is an objectively reasonable mistake of law.
Cf. State v. Cortez, 543 S.W.3d 198, 206 (Tex. Crim. App. 2018) ("As the court of appeals pointed out, ‘[d]riving is an exercise in controlled weaving. It is difficult enough to keep a straight path on the many dips, rises, and other undulations built into our roadways.’ Even a driver who is sober, alert, and careful may occasionally drift within their lane only because the roadway surface is not perfectly smooth. Moreover, drivers are not able to see. if their tires are touching the fog line. They are likely to veer over at some point and touch the fog line alongside the roadway without being aware they have done so. Some lane boundaries have raised reflective pavement markers or road grooves in the asphalt, rather than painted lines, to alert drivers when they are veering too close to another lane or are about to cross over into the shoulder. Sometimes these road grooves are on the fog line, sometimes they are alongside the outer edge of the painted fog line. Thus, we choose to evaluate the totality of the circumstances in this case to determine the reasonableness of the Trooper’s stop.").
Id. at 783 (quoting Hardin, 664 S.W.3d at 879 (Slaughter, J., concurring)).
We granted the State’s petition for discretionary review to consider whether the officer’s misunderstanding of the law should nonetheless give rise to reasonable suspicion to uphold the stop given "the vast and protracted controversy outlined above over the proper and controlling construction of § 545.060(a)."
WHAT IS MISTAKE OF LAW?
The modern application of the mistake-of-law doctrine emerged from Helen v. North Carolina, 574 U.S. 54, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014). In Heien, law enforcement had stopped Heien’s car on the mistaken belief that he had violated North Carolina law by driving with a taillight out. Id. at 57-59, 135 S.Ct. 530. The seizure had led to the discovery of cocaine in the car. Id. at 58, 135 S.Ct. 530. The North Carolina Court of Appeals reversed Heien’s conviction, holding that the mistake of law made the officer’s stop objectively unreasonable. Id. at 58-59, 135 S.Ct. 530. The North Carolina Supreme Court reversed the lower court’s decision finding that a reasonable mistake of law could make a stop reasonable under the Fourth Amendment and remanded the case to the court of appeals. Id. at 59, 135 S.Ct. 530. After going up the ladder again, Heien’s conviction at the trial court was affirmed. Id. at 60, 135 S.Ct. 530.
The Supreme Court found against Heien, holding "[T]here is no reason under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of reasonable mistake of fact, but not when reached by a similarly reasonable mistake of law." Id. at 61, 135 S.Ct. 530. The Supreme Court reasoned that mistakes must be objectively reasonable and that the subjective understanding of the law enforcement officer involved is not analyzed. Id. at 66, 135 S.Ct. 530. The Supreme Court ultimately determined that stopping Heien was reasonable, emphasizing the ambiguity of the law in question.
ARGUMENTS AND ANALYSIS
Given the dueling interpretations among the courts of appeals of subsections (a)(1) and (a)(2) of 545.060(a) at the time Officer Todd stopped Appellant, the question we are now presented with is whether Officer Todd reasonably believed the law only required Appellant to fail to maintain a single lane even if it was not unsafe to do so, even if that interpretation differed from the Third Court of Appeals and was later rejected by this Court. See Heien v. North Carolina, 574 U.S. 54, 60, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014) (holding reasonable suspicion for vehicle stop "can rest on a mistaken understanding of the scope of a legal prohibition").
Appellant argues that the mistake of law doctrine should not justify a search or seizure in the present case when the stop of Appellant’s vehicle under § 545.060(a) was not based on an objectively reasonable misunderstanding that subsection (a) sets forth two offenses instead of one. Appellant sets out three arguments as to why the mistake of law doctrine should not apply. First, he states that this is not that "exceedingly rare case" where the underlying statute poses a "very hard" or "difficult" question of statutory construction. Instead, Appellant argues the statute is neither ambiguous nor vague. Second, Appellant claims that mistake of law here can apply only if we "embrace the fiction" that the officer in this case did not know that in his jurisdiction the law had two components to satisfy to justify his stop of Appellant’s vehicle. Appellant argues that Officer Todd did in fact know the law in his jurisdiction. Appellant’s third and final argument is that the application of the mistake of law doctrine in this ease invites a law enforcement officer to "forum shop" for interpretations of law more favorable to his brand of policing. Alternatively, Appellant claims the mistake of law doctrine could force law enforcement to differentiate between the import of plurality versus majority opinions, to anticipate trends in court decisions, and to search for ambiguity in the law where there is none.
During Officer Todd’s cross-examination, the following exchange occurred:
Q. Now, Texas Transportation Code, that’s the code section you’re citing for staying within one lane of travel. You’re familiar with that section; is that correct?
A. Yes, sir.
Q. And in that section, what it states is that, "A driver must drive as nearly as practical, entirely within one lane"; isn’t that correct?
A. Yes, sir.
Q. And it also states, "and not move from that lane unless it can be done safely."
That's what the statute requires; isn’t that correct?
A. Yes, sir.
Q. So the statute doesn’t say that it’s against the law to leave your lane simply and absolutely, does it? In other words, you can—so long as you stay within the lane as nearly as practical as possible; isn’t that correct?
A. And safely, yes, sir.
Q. And requirement, "and that you cannot move safely"; isn't that correct?
A. Yes, sir, it is.
Tex Dep’t of Transp. Texas Motor Vehicle Traffic Crash Facts (2022), https://ftp.txdot.gov/pub/txdot-info/trf/crash_statistics/2022/01.pdf.
Giesberg v. State, 945 S.W.2d 120, 130 (Tex. App.—Houston [1st Dist.] 1996), aff'd by 984 S.W.2d 245, 251 (Tex. Crim. App. 1998) ("we acknowledge, of course, that we are not bound by [a decision of the Fourteenth Court.]"); Hines v. State, 144 S.W.3d 90, 97 (Tex. App.—Fort Worth 2004, no pet.) ("At the outset, we respectfully acknowledge that as a court of equal jurisdiction to that of the Texarkana court, we are not bound by [that court's decision]."); Eubanks v. Mullin, 909 S.W.2d 574, 576 n.1 (Tex. App.—Fort Worth 1995, no pet.) ("Appellant is correct that opinions of a sister appellate court do not set precedent that bind other courts of appeals."); Delamora v. State, 128 S.W.3d 344, 359 (Tex. App.—Austin 2004, pet. ref’d) ("We are, of course, not bound by the decision of another court of appeals."); Hardy v. Matter, 350 S.W.3d 329, 333 (Tex. App.—San Antonio 2011, pet. dism’d) ("The opinions of other Texas appellate courts, however, are not binding on us."); White v. State, 999 S.W.2d 895, 902 n.3 (Tex. App.—Amarillo 1999, pet. ref’d) (a decision "rendered by the Court of Appeals for the Second District in Fort Worth .. is neither our precedent nor binding upon us. Indeed, the question is an issue of first impression in this court."); Mitchell v. John Wiesner, Inc., 923 S.W.2d 262, 264 (Tex. App.—Beaumont 1996, no pet) ("The opinions of a sister court of appeals are not precedent that bind other courts of appeals[.]").
[1] We reject these arguments. Contrary to Appellant’s contention, the underlying statute did pose a "very hard" or "difficult" question of statutory construction. As discussed above, when the officer acted here, the body of law regarding §. 545.060(a) was unsettled statewide due to competing intermediate court decisions and the inability of this Court to come to agreement as to the intersection between subsections (a)(1) and (a)(2) of 545.060(a). Therefore, any enforcement of § 545.060(a) before Hardin, judged under reasonable suspicion or probable cause standards, was objectively reasonable.
[2, 3] Second, we do not find Officer Todd’s responses to counsel’s questions as to the interpretation of the law in his jurisdiction compelling. It is unclear from this exchange if the officer was answering counsel’s questions regarding his understanding of the relevant law as of the date of the offense or after the offense. If anything, this exchange further serves to highlight the pre-Hardin confusion sur- rounding the intersections between subsections (a)(1) and (a)(2) of 545.060(a) among police officers, lawyers, and judges. Nevertheless, Officer Todd’s subjective belief regarding whether 545.060(a) created two offenses or one offense is irrelevant to our analysis. See Heien, 574 U.S. at 66, 135 S.Ct. 530 ("The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved."). What matters to our analysis is whether it was objectively reasonable for an officer in the Third Court of Appeals’ jurisdiction to think that Appellant’s failure to maintain a single lane of traffic was a violation of Texas law. Which brings us to Appellant’s third concern: that the application of the mistake of law doctrine in this case invites a law enforcement officer to "forum shop" for interpretations of law more favorable to his brand of policing. We disagree. This argument wrongly presupposes that an officer has a choice in which appellate court his case will be assigned. The Texas Legislature has divided the State into fourteen appellate court districts with criminal jurisdiction, composed by county. See Tex. Govt. Code §22.201. In general, a case is appealed from the county of conviction to the court of appeals district that has jurisdiction over that specific county. An arresting officer has no ability to "shop" for a favorable intermediate court.
Some cases may be transferred pursuant to a docket equalization order issued by the Texas Supreme Court. See Tex. Govt. Code Ann. § 73.001.
Id.
In several unpublished opinions, the Fifth Court had expressed the viewpoint that § 545.060(a) would be violated only if the driver failed to maintain a single lane, unsafely, See Shaw v. State, No. 05-1-01154-CR, 2012 WL 6014759, at *2 (Tex. App.—Dallas Dec. 4, 2012, no pet.) (mem. op., not designated for publication) (finding reasonable suspicion to stop driver, where officer observed driver having obvious difficulty staying in a single lane of traffic and doing so while there was at least one other vehicle on the road, and finding such driving undeniably unsafe, regardless of whether officer noted it in his report).
See also Stegal v. State, Nd. 05-16-00098-CR, 2017 WL 1536516, at *3 (Tex. App.—Dallas Apr. 26, 2017, no pet.) (mem. op., not designated for publication) (upholding stop on other grounds, but noting that "To support reasonable suspicion of a violation of section 545.060, there must be some indication in the record that failure to maintain a single lane was unsafe."); Nava v. State, No. 05-14-00242-CR, 2015 WL 3936819, at *3 (Tex. App.—Dallas June 26, 2015, pet. ref’d) (mem. op., not designated for publication) (also upholding stop on other grounds, but stating "Furthermore, unlike a violation of section 545.060, a violation of section 545.051 does not require an unsafe maneuver.").
CONCLUSION
In April of 2017, there was no controlling interpretation of Section 545.060(a) from the Court of Criminal Appeals and the intermediate courts were split. A controlling interpretation did not arrive until the opinion in Hardin issued on November 2, 2022. Therefore, the officer’s mistaken interpretation of Section 545.060(a) was "entirely reasonable in view of the nuanced statutory language and the conflicting caselaw from this Court and the intermediate courts of appeals interpreting it." Hardin, 664, S.W.3d at 879 (Slaughter, J., concurring). We therefore reverse the court of appeals’ decision and affirm the trial court’s judgment.
Yeary, J., filed a concurring opinion.
Walker, J., filed a dissenting opinion.
Yeary, J., filed a concurring opinion.
I agree with the Court that the officer’s dilemma in this case, created by the conflict between the controlling precedent in the Third Court of Appeals and this Court’s non-precedential decision in Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016), should inure to the benefit of the State and the officer’s decision to detain. In my view, however, the Court should uphold the officer’s detention decision, not because the officer made a reasonable mistake, but because, based on a correct understanding of our statutory law, the officer did nothing wrong—at all. Neither he nor the State should be unfairly punished for their allegiance and adherence to the very clear laws that were passed by our Legislature to guide the judgment of law enforcement in cases like this one. The way I see it, the officer’s judgment was good, and he might have saved lives.
The State was correct to argue that the officer’s dash-cam video "showed ‘a very clear failure to maintain a single lane during a left turn,’ and that this was ‘a dear violation of the law.’ " Majority. Opinion at 3. In light of that, the officer’s decision to detain and investigate was entirely reasonable. So, I ultimately agree with the Court that the trial court’s judgment in this case should be affirmed, and the court of appeals’ judgment should be reversed, albeit for a different reason than the Court’s.
But this case illustrates how this Court’s recent opinion in State v. Hardin was both wrong and highly problematic. See 664 S.W.3d 867 (Tex. Crim. App. 2022). It has mandated adherence to a clearly erroneous interpretation of our statutory law. Contrary to the opinion of the Court in Hardin, the offense for which the officer initiated a traffic stop in this case does not require evidence that the movement by the vehicle could not be made safely.
Established in Section 542.301(a) of the Texas Transportation Code, the language of the offense at issue in this case, and also at issue previously in Hardin, provides that:
(a) A person commits an offense if the person performs an act prohibited or fails to perform an act required by this subtitle.
Tex Transp. Code § 542.301(a) (all emphasis added). This formulation, to me, clearly establishes two distinct potential offenses: (1) commission of an act prohibited by "this subtitle," and (2) failure to comply with a requirement of "this subtitle." Then, separately, Section 545.060(a) of our Transportation Code, which is a part of the same "subtitle" as section 542.301(a), establishes both a requirement and a prohibition, either of which—according to my view—might constitute discrete offenses under Section 543.301(a).1a Specifically, Section 545.060(a) provides:
(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.
Tex. Transp. Code § 545.060(a).
Thus, to me and, I hope, to other readers of plain English as well (though clearly not enough to win the day in Hardin, or in this case), Section 545.060(a) identifies two discrete ways in which a person might commit an offense pursuant to the provisions of Section 543.301(a): (1) by failing to drive as nearly as practical entirely within a single lane, or, separately and distinctly, (2) by moving from a lane when that movement cannot be made safely. See Hardin, 664 S.W.3d at 885-89 (Tex. Crim. App. 2022) (Yeary, J., dissenting). This means that if Appellant drove his vehicle on the roadway, and he failed to "drive as nearly as practical entirely within a single lane[,]" then Appellant failed, "to perform an act required" by a statute found within Title 7, Subtitle C, of the Texas Transportation Code. The safety of the action is not a consideration. And it also means that if the officer who detained him developed a reasonable suspicion that Appellant violated the law in that way, the officer was justified in detaining Appellant to investigate whether he committed an offense.
I am sure that the members of this Court who joined Hardin agree with it and are convinced that it is correct. But I could not join that opinion because I am convinced that it represents the application of some kind of judicial philosophy other than an originalist textualism, which I believe to be the best way for courts to read legislative enactments in our constitutional form of government. It still seems to me that the Court, in Hardin, by failing to simply accept the plain and intelligible language of the statutes at issue there, has re-written our law rather than simply accepting it as it was written. See id. at 885 (Yeary, J., dissenting). Consequently, in my view, Hardin should just be overruled as quickly as. possible. See id. at 885-89 (Yeary, J., dissenting).
Some may be disturbed that an officer might be justified in detaining a person on the roadway after having merely developed a reasonable suspicion that the person has failed to "drive as nearly as practical, entirely within a single lane" in an automobile.2a It is true that it is sometimes difficult to stay even "as nearly as practical" entirely within the lanes on a roadway. But driving an automobile in this State is a privilege reserved for people who take seriously the danger that automobiles may pose to themselves and to the rest of our population. Burg v. State, 592 S.W.3d 444, 449 (Tex. Crim. App. 2020) ("Appellant does not have any right to be free from a license suspension given that the act of driving is a privilege not a right.").
According to the Texas Department of Transportation, there were 4,481 deaths due to accident on Texas roadways in 2022.3a Of those, 1,163 deaths were caused in crashes in which a driver was under the influence of alcohol.4a One person was killed on Texas roadways every one hour and 57 minutes. Also, one person was injured on Texas roadways every one minute and nine seconds. And law enforcement officers are charged with the difficult duty to enforce our traffic laws and to find and detain individuals who are impaired and remove them from the roadway.
Id.
Especially given that the Fifth Court had indicated that it, too, would hold that a stop would need a showing that the failure to maintain a single marked lane was also unsafe. See note 4, supra.
Id
The Fifth Court of Appeals.
Officers who correctly read, understand, and enforce laws like the one at issue in this case—laws that are clear and unambiguous, but which are nevertheless misconstrued by the, courts—should never be penalized for enforcing the law as it is written by our Legislature. But this Court’s opinion in Hardin will, eventually, cause that to happen, along with other anomalous and possibly even tragic results. Sometimes even judges (myself included) make mistakes. But the laws at issue in Hardin, and in this case, do not say what this Court said they do. The Court was wrong to construe those statutes the way it has. And the Court was also wrong to say that reading the statutes at issue here the right way—the way I have suggested—would render the statutes unconstitutional. Hardin, 664 S.W.3d at 875. It most certainly would not.
In my dissent in Hardin, I pointed out some anomalies that might present themselves under the Court’s misconstruction of the statutes at issue there. Those same statutes are at issue here. But the facts of this case bring to mind still other, far more tragic possible consequences. For example, in this very case, the Court admits that Appellant had a blood alcohol content of .174. Majority Opinion at 778-79. The Court also concedes that, "[b]ased on his criminal history, and the events of that morning, Appellant was indicted for felony driving while intoxicated." Id. (emphasis added). And Appellant was eventually convicted for his conduct in this case, presumably upon proof satisfying the beyond-a-reasonable-doubt standard. Id. at 778-79. If, instead, the officer in this case would have followed this Court's misconstruction of the law, as described in Hardin, he might have waited to detain Appellant until such time as Appellant’s car came near other vehicles on the road. And during that extra time before detention, Appellant might have been involved in a single car accident and been injured or killed. The Court should take the opportunity presented by this case, today, and without delay, to simply overrule its mistaken, and clearly erroneous, opinion in Hardin.
Gregg, Rusk, Upshur, and Wood Counties.
The officer in this case read and understood those laws correctly. He should be honored for having followed their dictates as written. He should not be made to beg—via a prosecutor’s invocation of the exception established by the United States Supreme Court’s opinion in Heien v. North Carolina, 574 U.S. 54, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014)—to be excused from the extra-textual mandates erroneously imposed by this Court alone. See, e.g., State’s Brief at 11 (citing Heien, 574 U.S. at 61, 135 S.Ct. 530). I respectfully concur only with the result reached by the Court’s opinion.
DISSENTING OPINION
Walker, J., filed a dissenting opinion.
In 2022, this Court decided what constitutes a violation of the "Driving on Roadway Laned for Traffic" statute, Transportation Code § 545.060(a). State v. Hardin, 664 S.W.3d 867 (Tex. Crim. App. 2022). We held the statute described a single offense, and a violation of the statute occurs when a driver does not drive as nearly as practical entirely within a single lane and moves from that lane in an unsafe manner. Id. at 876.
But this Court was not the first to address the question. In 1998, the Third Court of Appeals in Austin reached that very same conclusion, in Hernandez v. State, 983 S.W.2d 867, 871 (Tex.. App.—Austin 1998, pet. ref d). The Third Court of Appeals has consistently followed Hernandez ever since. In this case—before we handed down our decision in Hardin—the court of appeals relied on its prior precedent in Hernandez and found the stop, which occurred in Bell County, was not supported by reasonable suspicion because the officer conducting the stop did not have specific articulable facts showing that Appellant’s movement was unsafe. Daniel v. State, 641 S.W.3d 486, 494 (Tex. App.—Austin 2021).
This Court, however, decides that despite Hernandez being longstanding precedent in the Third Court of Appeals district, the Bell County officer in this case could have had an objectively reasonable mistake of law about what the statute requires, because other courts of appeals did not require a showing that the movement was unsafe and because this Court handed down a fractured opinion in 2012 in Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016).
I cannot agree. A published opinion of the Third Court of Appeals is binding precedent in Bell County unless or until that court en banc decides to overrule its prior decision, or unless or until this Court says otherwise. Neither occurred before our opinion in Hardin was handed down. At the time Appellant was stopped, Hernandez was the controlling law in Bell County, and an officer conducting a stop could not have an objectively reasonable mistake of law about what the statute requires—the law was settled in the third appellate district. The court of appeals did not err in adhering to its precedent. I disagree with the Court’s decision to reverse; and, respectfully, I must dissent.
I — Heien Applies When the Officer Must Construe the Law Himself
In Heien v. North Carolina, the Unites States Supreme Court held that if an officer initiates a traffic stop based on a "reasonable mistake of law" as to whether the defendant’s conduct violated a traffic statute, the stop is "lawful under the Fourth Amendment." 574 U.S. 54, 57, 185 S.Ct. 580, 190 L.Ed.2d 475 (2014). The "reasonable mistake of law" doctrine applies only to "reasonable mistakes," and those mistakes must be "objectively reasonable." Id. at 66, 135 S.Ct. 530. Thus, "an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce." Id. at 67, 135 S.Ct. 530.
For example, the officer in Heien stopped the defendant’s vehicle because one of its two brakes lights was out, but the court of appeals later determined that a single working brake light was all the North Carolina law required. Id. at 57, 135 S.Ct. 530. The United States Supreme Court nevertheless upheld the stop because at the time the officer made the stop, the statute, which could have been read to require two working brake lights, had "never been previously construed" by North Carolina’s appellate courts. Id. at 68, 135 S.Ct. 530. As a result, it was objectively reasonable for the officer to think that a single faulty brake light violated the law. Id. And because the mistake of law was reasonable, there was reasonable suspicion to justify the stop. Id.
Justice Kagan added in her concurring opinion that for the "reasonable mistake of law" doctrine to apply, "the statute must pose a ‘really difficult’ or ‘very hard question of statutory interpretation,’ " and such cases are "exceedingly rare." Id. at 70, 135 S.Ct. 530 (Kagan, J., concurring). "If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not." Id.
II — The Relevant Court of Appeals Already Construed the Statute
In its opinion in this case, the Court correctly recognizes that "[w]hat matters to our analysis is whether it was objectively reasonable for an officer in the Third Court of Appeals’ jurisdiction to think that Appellant’s failure to maintain a single lane of traffic was a violation of Texas law."1b Answering the question in the affirmative, the Court in its conclusion declares that:
In April of 2017, there was no controlling interpretation of Section 545.060(a) from the Court of Criminal Appeals and the intermediate courts were split. A controlling interpretation did not arrive until the opinion in Hardin issued on November 2, 2022. Therefore, the officer’s mistaken interpretation of Section 545.060(a) was "entirely reasonable in view of the nuanced statutory language and the conflicting caselaw from this Court and the intermediate courts of appeals interpreting it."2b
But the Court’s position depends upon a belief that, because other courts of appeals held differently and because this Court handed down fractured opinions in Leming, Hernandez was no longer precedent in the Third Court of Appeals district. I disagree.
When a court of appeals decides a case, that decision is binding upon the district courts within the court of appeals’s jurisdiction. "Trial courts ‘must follow and be bound by a ruling of law made by a Court of Appeals until such ruling is overruled or set aside’ by the Court of Criminal Appeals." Perez v. State, 495 S.W.3d 374, 392 (Tex. App.—Houston [14th Dist.]. 2016, no pet.) (quoting Hurt v. Oak Downs, Inc., 85 S.W.2d 294, 300 (Tex. App.—Dallas 1935, writ dism’d w.o.j.) (Bond, J., dissenting)). Accordingly, we have held that mandamus is available "to correct [a trial court’s] judicial action that ignores clear, binding precedent from a court of superior jurisdiction." State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994). "Trial judges do not enjoy the freedom to ignore the law." Id. The district court in Bell County that heard Appellant’s motion to suppress was bound by the Third Court of Appeals’s decision in Hernandez.
And not only was the district court in Bell County bound by Hernandez, so, too, was the Third Court of Appeals. A court of appeals is "bound by prior opinions of [that] court unless there is a contrary decision by [that] court en banc or a higher court." Nowzaradan v. Ryans, 347 S.W.3d 734, 739 (Tex. App.—Houston [14th, Dist.] 2011, no pet.) (emphasis in original); see also Thomas v. Torrez, 362 S.W.3d 669, 679 (Tex. App.—Houston [14th Dist.] 2011, pet. dism’d) ("Though the high court has not yet addressed this fact pattern, this court did so … a precedent by which we are bound."); Grimes Cty. Bail Bond Bd. v. Ellen, 267 S.W.3d 310, 315 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) ("Our prior opinions have continuing authority, even when a party contends that a precedent was incorrectly decided.").
Additionally, the fact that some of the other courts of appeals reached a different interpretation of the statute did not mean the Third Court of Appeals’s precedent in Hernandez was no longer binding. "It is rudimentary that courts are not bound by the decisions of other courts of equal jurisdiction." Shook v. State, 156 Tex.Crim. 515, 244 S.W.2d 220, 221 (1951) (op. on mot. for reh’g); Cannon v. State, 691 S.W.2d 664, 679-80 (Tex. Crim. App. 1985) (quoting Shook).3b
Furthermore, I disagree that Leming unsettled the state of the law because the part of Leming at issue had no effect on Hernandez. In that part—Part II of the lead opinion—four judges agreed that § 545.060(a) created two separate offenses, and it would be a violation of the law if a driver did not drive as nearly as practical entirely within a single lane, and it would be a violation of the law if a driver moved from the lane unless that movement could be made safely. Leming, 493 S.W.3d at 556-61 (opinion by Yeary, J., joined by Keller, P.J, and Meyers and Richardson, JJ.). Four judges dissented, and they agreed that § 545.060(a) created a single offense. Id. at 567-70 (Keasler, J., dissenting, joined by Johnson and Hervey, JJ.); id. at 573 (Newell, J., dissenting) ("I join Judge Keasler’s dissenting opinion[.]"). Judge Alcala joined neither side, leaving four against four. As this Court noted in Hardin, four against four makes a tie, not even a plurality, Hardin, 664 S.W.3d at 876 n.35. The most that can be said about Part II of Leming is that it showed there was a split among the judges of this Court about how to interpret the statute, leaving "point[s] of reference for further discussion of the issue." Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality op.).
Beyond showing a disagreement, I would submit that Part II of Leming is dicta. Judge Alcala joined Parts I, III, and IV of Leming. A five-member majority of the Court upheld the stop because the officer had a reasonable suspicion to believe that Mr. Leming was driving while intoxicated. Id. at 561-65. Regardless of our split about the statute’s interpretation, "the opinion of the Court" that actually meant something to the decision of the ease said it was a DWI case. See id. at 553 ("Yeary, J., … delivered the opinion of the Court with respect to Parts I, III, and IV[.]"); contra id. ("Yeary, J., … delivered … an opinion with respect to Part II[.]").
Nothing we said in Leming upset the holding of Hernandez. For the counties covered by the Third Court of Appeals, including Bell County, Hernandez remained binding precedent. In Bell County, "an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce." Heien, 574 U.S. at 67, 135 S.Ct. 530.
III — Overlapping Jurisdictions
In its brief, the State sets aside Hernandez and would have us focus on the bigger, statewide picture. The State argues that reasonable mistake of law under Heien should apply regardless of whether a court of appeals has construed the statute because of the structure of the appellate courts in Texas. The State points out that there are courts of appeals that have overlapping jurisdictions, and different courts of appeals can make different, conflicting rulings about the law. The State argues that any court of appeals precedent cannot preclude a reasonable mistake of law under Heien, because the law at the intermediate appellate court level is "more mixed up than a stray dog’s breakfast."
If the breakfast were a sampler from across the state, or even from this Court, there would be two different flavors on the plate. But the breakfast in this case was served up in the Third Court of Appeals’s district, where they have been serving the same meal since 1998 and there was nothing to mix up. Within the boundaries of the Third Court of Appeals’s district, the law was settled by Hernandez.
The State also argues that, if court of appeals decisions can create precedent dictating what a statute means within each court of, appeals district, then officers would have to consider what the law is within the district that they are in before they make a stop. But following the law, as it is decided by the court of appeals, is part of the job. An officer enforcing the traffic laws in his county does not need to survey the decisions of all of the courts of appeals across the state. The officer is bound by the law that applies in his county, and the law there depends on what the court of appeals overseeing his county had to say. For officers in the vast majority of counties, they did not have to construe the statute on their own: their courts of appeals had already ruled, one way or the other, on the question.
But one court of appeals had not answered the question in a published opinion before we decided Hardin: the Fifth Court of Appeals in Dallas.4b Officers in five out of the six counties overseen by the Fifth Court were in the situation in which they did not have any binding precedent in a published decision about what the statute requires, leaving it up to themselves to interpret the law. The officers in Collin, Dallas, Grayson, Kaufman, and Rockwall Counties could have harbored an objectively reasonable mistake of law that they only needed a showing that the driver failed to maintain a single marked lane, regardless of whether the movement was safe.
The sixth county, Hunt County, presents a special case. Hunt County is also within the district of the Sixth Court of Appeals in Texarkana. That court of appeals held that a stop for failing to maintain a single marked lane must be supported by a showing that the failure to do so was unsafe. Curtis v. State, 209 S.W.3d 688, 698-94 (Tex. App.—Texarkana 2006), rev’d on other grounds, 238 S.W.3d 376 (Tex. Crim. App. 2007). Officers in Hunt County had an authoritative decision from the Sixth Court of Appeals telling them What the statute requires, and there was no conflict from the Fifth Court of Appeals.5b
But there are counties where there was a conflict from above. Gregg, Rusk, Upshur, and Wood Counties are shared between the Sixth Court of Appeals and the Twelfth Court of Appeals in Tyler. Unlike the Sixth Court of Appeals, the Twelfth Court of Appeals held, in unpublished opinions, that the statute is violated when a driver fails to maintain a single marked lane, regardless of whether the movement was unsafe. Thomas v. State, No. 12-04-00003-CR, 2005 WL 1798339, at *3 (Tex. App.—Tyler July 29, 2005, no pet.) (mem. op., not designated for publication); State v. Virginia South, No. 12-17-00176-CR, 2018 WL 636085, at *4 (Tex. App.—Tyler Jan. 31, 2018, pet. ref’d) (mem. op., not designated for publication) (holding stop supported by showing that driver failed to remain in her dedicated lane of traffic; however, also noting that the stopping officer believed the driver’s behavior was unsafe). While unpublished opinions are not precedent, Tex. R. App. P. 47.7(a), officers in these four counties had, on the one hand, an authoritative decision by the Sixth Court of Appeals and, on the other hand, indications that the Twelfth Court of Appeals would hold differently. Arguably, officers in these four counties would have been in the situation that the State argues applied to officers statewide. While these officers had an authoritative decision from above telling them what the statute requires, there was the looming spectre of a decision that would go in the other direction, depending on where the case would go on appeal. They would have had to gamble on deciding which authority to follow, and those officers could have harbored an objectively reasonable mistake of fact about the law.
The State focuses in particular on the ten counties—Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller, and Washington Counties—shared by the First Court of Appeals and the Fourteenth Court of Appeals, both in Houston. Foreshadowing chaos if those two courts of appeals were to reach contradicting decisions, the State contends that reasonable mistakes of law are, unavoidable in these counties. That could very well be so, as it would be in the four counties shared by the Sixth Court and the Twelfth Court. But the State ignores the statute at issue. On that matter, the First Court and the Fourteenth Court do not have a conflict. Both courts have held that the statute requires both a showing that the driver failed to maintain a single marked lane and also that the driver’s movement was unsafe. Munoz v. State, 649 S.W.3d 813, 818 (Tex. App.—Houston [1st Dist.] 2022, no pet.); State v. Bernard, 503 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2016), judgment vacated on other grounds by 512 S.W.3d 351 (Tex. Crim. App. 2017). Officers in the First and Fourteenth Court of Appeals districts could not have an objectively reasonable mistake of law about what the statute requires.
In sum, the State’s concern about overlapping jurisdictions has merit, but only to a point. Overlapping jurisdiction is not a reason to categorically treat decisions of the courts of appeals as non-precedential, leaving officers to construe statutes for themselves until a final decision is handed down from this Court. Overlapping jurisdiction is a concern only where they overlap, and only when those overlapping courts of appeals, have a conflict. Outside of those circumstances, then an officer is bound by the law of the land in which he serves. In this case, that land is Bell County in the Third Court of Appeals’s district, and that law was Hernandez.
IV — Heien Should Not Always Apply Whenever We Have Not Spoken
In trying to escape the precedential effect of court of appeals decisions, the State finally argues that reasonable mistake of law under Heien should always apply whenever this Court has not ruled on an issue, no matter what the courts of appeals have held.
While having to be aware of only the decisions of this Court would mean less work for officers, it takes a chainsaw to the court structure of this state. Whenever the issue is whether a stop is justified for violating a statute that we have yet to construe, the State’s position would have district courts ignore any decisions by the courts of appeals when deciding a motion to suppress, and it would have courts of appeals ignore their own precedents in reviewing district court rulings on motions to suppress. Instead, so long as the State can point to any ambiguity in the statute, then the stop is to be upheld. And whose definition of ambiguity would apply? If the courts of appeals cannot weigh in, then would ambiguity be measured by how an officer untrained in the law would read the statute? I think not.
Furthermore, it does not seem like the State’s proposed solution would actually make life easier for officers. It is not guaranteed that this Court will construe every new statute as soon as an officer believes he sees a violation of that statute and makes a stop. We are a court of discretionary review, and we grant review of only a fraction of the hundreds and thousands of petitions that we receive. Unless and until we exercise our power of discretionary review, the decisions of the courts of appeals are binding upon them and the counties they oversee. But the State’s position—that only a decision from this Court would do away with reasonable mistakes of law under Heien—would classify every court of appeals decision to be non-precedential whenever a court of appeals construes a criminal statute. Officers would have to be lawyer-on-the-spot for any statutes that we have not yet construed, even if the learned justices of the courts of appeals have already addressed the statutes.
Taken to its extreme, if the question was not the construction of a Texas statute, but instead the reasonableness of a search or seizure under the Fourth Amendment, the State’s position would seem to have Heien apply even when this Court has spoken. The final arbiter of questions of federal law, including the interpretation of the United States Constitution, is the United States Supreme Court. Could a stop in Texas be supported by an officer’s mistake of law, simply because another state issued a ruling upholding a stop sharing similar facts, regardless of a contrary holding by this Court, so long as the United States Supreme Court has not handed down a final, authoritative decision? Again, I think not.
The State asks for too much.
V — Conclusion
Before this Court handed down Hardin, a stop in some other county, overseen by a court of appeals that had not yet decided the question in a precedential published opinion,6b or overseen by multiple courts of appeals that have decided the question in different ways,7b might have been supported by an officer’s objectively reasonable mistake of law about whether the statute required a showing that the driver’s operation of his vehicle was unsafe. In those counties, there would be no authoritative decision informing the officer what constitutes a violation of the statute. The officer therefore would have been on his own to interpret the law. If he mistakenly understood the statute to require no more than a failure to drive within a single lane, that understanding would have been objectively reasonable although ultimately wrong. See Heien, 574 U.S. at 68, 135 S.Ct. 530; see also Heien, 574 U.S. at 70, 135 S.Ct. 530 (Kagan, J., concurring).
But that is not this case. This case came out of Bell County. For Bell County, the issue has been settled law ever since the Third Court of Appeals decided Hernandez in 1998. Officers enforcing the law there have known for twenty-five years that a stop for failing to maintain a single marked lane requires a showing that the vehicle’s movement was also unsafe. An officer making a stop in Bell County might mistakenly believe he can stop a driver without a showing that the movement was unsafe, but that mistaken belief would not be reasonable.
The judgment of the court of appeals should be affirmed. Because the Court goes in the other direction, I respectfully dissent.