Opinion
NO. 03-19-00824-CR
11-06-2020
The State of Texas, Appellant v. Ronald W. McMahan, Jr., Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY
NO. 2019CR0511 , THE HONORABLE RANDAL C. GRAY, JUDGE PRESIDING MEMORANDUM OPINION
The State of Texas appeals from the trial court's order granting a motion to suppress filed by appellee Ronald W. McMahan, Jr., who was arrested for the offense of driving while intoxicated following a traffic stop. The trial court concluded that the arresting officer lacked reasonable suspicion to initiate a traffic stop, and it granted the motion to suppress for that reason. On appeal, the State argues that the trial court erred in concluding that the officer lacked reasonable suspicion to initiate the stop. We agree and will reverse the trial court's order.
BACKGROUND
At the suppression hearing, the trial court heard evidence that on the night of September 29, 2018, Deputy Edward Rangel, Jr. of the Comal County Sheriff's Office was driving behind a pickup truck when he observed it "drift into the shoulder or the bike lane and ride the edge of the grass line." When asked to describe the "extent of the drift" that he observed, Rangel answered, "So the vehicle was in this far right lane. I observed it drift past the solid white line onto the shoulder or the small bike lane there." Based on his observations of the vehicle drifting out of its lane, Rangel initiated a traffic stop on the truck, the driver of which was identified as McMahan.
A video recording of the stop, taken from Rangel's patrol-car dash camera, was admitted into evidence and viewed by the trial court. On the recording, McMahan's truck could be seen driving on a five-lane highway, with two lanes in each direction and a center turn lane. McMahan's truck was in the far-right lane, driving close to the solid white "fog" line separating the right lane from the shoulder of the road. At approximately 24 seconds into the recording, McMahan's truck could be seen crossing the "fog" line, and for approximately five seconds after that, McMahan's right-side tires could be seen across the fog line and on the shoulder of the road. As the truck begins to drift back into the right lane, Rangel activates his overhead lights and initiates the stop. Although the recording showed the truck cross the fog line only once, Rangel testified that he saw the truck cross the fog line twice, once before he turned on his camera and once after the camera was activated. On cross-examination, Rangel acknowledged that McMahan crossing the fog line did not place any other vehicles in danger.
Rangel testified that he initiated the traffic stop based on McMahan's "failing to maintain a single lane" of traffic, which is a violation of Section 545.060(a) of the Transportation Code, and on McMahan's "going into the shoulder" of the roadway, which is a violation of Section 545.058(a) of the Texas Transportation Code. After taking the matter under advisement and reviewing additional briefing by the parties, the trial court granted the motion to suppress and later made the following findings of fact and conclusions of law:
Findings of Fact
1. The State introduced State's Exhibit 1, a video of the stop involving Mr. McMahan and played the video up to the point of initiating a traffic stop on Mr. McMahan for the Court's consideration (approximately 30 seconds). The State further had Deputy Rangel testify as to his observations in initiating the traffic stop involving Mr. McMahan.
a. The Court finds Deputy Rangel's testimony credible.
b. State's Exhibit 1, the video, captured the relevant events at issue.
2. Deputy Rangel was driving behind Mr. McMahan's pickup on a five-lane road (two lanes in either direction with a center 'turn' lane) at night.
3. Rangel observed Defendant's right-side tires cross the white solid line on the right side of the lane Mr. McMahan was traveling in possibly twice. There is one instance on video, and Deputy Rangel testified that he observed the tires to cross the solid white line once before the video was activated, "if I recall right," for a total of two times.
4. There were no cars traveling near Defendant—either alongside him or in the opposite direction and when he crossed the white line it was not done in an unsafe manner.
5. According to Deputy Rangel, Mr. McMahan was stopped for "failing to maintain a single lane," which is found in Texas Transportation Code §545.060.
6. Deputy Rangel did not observe, nor did the State present any evidence that Mr. McMahan was driving on an improved shoulder as contemplated by §545.058. He observed only Mr. McMahan's right-side tires drift over the solid white line to the right of his lane.
7. Deputy Rangel initiated a traffic stop by turning on his overhead red-and-blue lights immediately upon observing Mr. McMahan's tires cross the white line.
8. Mr. McMahan immediately pulled over in compliance with the traffic stop.
9. The stop and arrest of Mr. McMahan was without a warrant.
10. This Trial Court requested additional briefing from the parties and reviewed the parties' briefs, filed on October 14, 2019, before it decided to grant the motion to suppress. The question to be briefed as stated by the Trial Court and agreed to by the parties was as follows:
The question is[,] is crossing over the fog line - let's give the officer the benefit of the doubt here and say twice, is that sufficient to pull the driver over with nothing else?
The Court hereby makes the following conclusions of law:
Conclusions of Law
1. The facts and circumstances known to Deputy Rangel immediately prior to the stop, did not constitute objectively reasonable suspicion that Mr. McMahan had violated any traffic laws, including TEX. TRANSP. CODE §545.060 and TEX. TRANSP. CODE §545.058.
2. TEX. TRANSP. CODE §545.060 "Driving on Roadway Laned for Traffic," has been examined thoroughly in caselaw and provides in pertinent parts:
(a) An operator on a roadway divided into two or more clearly marked lanes for traffic:
(1) shall drive as nearly as practical within a single lane; and
(2) may not move from the lane unless that movement can be made safely.
To prove one violates this provision, the text requires the State to show that a lane line encroachment creates an unsafe situation. Hernandez v. State, 983 S.W.2d 867 (Tex. App.—Austin 1998, pet. ref'd.), State v. Huddleston, 164 S.W.3d 711 (Tex. App.—Austin 2005), Fowler v. State, 266 S.W.3d 498 (Tex. App.—Fort Worth 2008), Bass v. State, 64 S.W.3d 646 (Tex. App.—Texarkana 2001, pet. ref'd.), State v. Cerny, 28 S.W.3d 796 (Tex. App.—Corpus Christi 2000, no pet.).
It was not objectively reasonable to suspect that Mr. McMahan violated this statute. The facts and circumstances support reasonable suspicion only that Mr. McMahan failed to "drive as nearly as practical within a single lane"—not that his movement from the lane was unsafe.
3. TEX. TRANSP. CODE §545.058 "Driving on an Improved Shoulder of a Roadway," provides in pertinent parts:
(a) An operator of a motor vehicle 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; (3) to decelerate before making a right turn; (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn; (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.
It was not objectively reasonable to suspect that Mr. McMahan violated this statute. Mr. McMahan did not "drive on an improved shoulder to the right of the main traveled portion of a roadway," as contemplated by this statute. Each of the permissible reasons describe circumstances in which a vehicle is driving in a continuous manner, completely or almost completely on the improved shoulder. A driver, such as Mr. McMahan, who "drifts" over the "fog line" with only his right tires would not, for example, be allowed to stop or park, and could not accelerate before entering the main traveled lane, pass another vehicle, or allow another vehicle to pass him.
4. Because Mr. McMahan was detained without reasonable suspicion of criminal activity, evidence gained from the detention must be suppressed.
STANDARD OF REVIEW
"We review a ruling on a motion to suppress using a bifurcated standard of review." Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019) (citing Guzman v. State, 955 S.W.2d 85, 87-91 (Tex. Crim. App. 1997)). "A trial court's findings of historical fact and determinations of mixed questions of law and fact that turn on credibility and demeanor are afforded almost total deference if they are reasonably supported by the record." Id. "That same deferential standard of review 'applies to a trial court's determination of historical facts [even] when that determination is based on a videotape recording admitted into evidence at a suppression hearing.'" State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013) (quoting Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006)). "We review a trial court's determination of legal questions and its application of the law to facts that do not turn upon a determination of witness credibility and demeanor de novo." Id.
We view the evidence in the light most favorable to the trial court's ruling, State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014), and that ruling will be sustained if it is correct on any applicable theory of law and the record reasonably supports it, State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019). "As the prevailing party at the trial level, appellee gains the benefit of deference on factual findings made in [his] favor." State v. Ford, 537 S.W.3d 19, 23 (Tex. Crim. App. 2017) (citing State v. Krizan-Wilson, 354 S.W.3d 808, 815-16 (Tex. Crim. App. 2011)); see Duran, 396 S.W.3d at 571 ("The winning side is afforded the 'strongest legitimate view of the evidence' as well as all reasonable inferences that can be derived from it." (quoting State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011))). However, whether the facts, as determined by the trial court, add up to reasonable suspicion or probable cause to support a search or seizure under the Fourth Amendment is a legal question to be reviewed de novo. See Ford, 537 S.W.3d at 23; Byram v. State, 510 S.W.3d 918, 923 (Tex. Crim. App. 2017); Duran, 396 S.W.3d at 571; Weaver, 349 S.W.3d at 525; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
Moreover, "deference is due only if the trial court's rulings are supported by the record." Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012). Thus, "'[w]hen there are factual disputes regarding testimony or the contents of a videotape, the trial court's findings of historical fact are afforded almost total deference.'" Id. (quoting Tucker v. State, 369 S.W.3d 179, 187 (Tex. Crim. App. 2012) (Alcala, J., concurring)). "'But when evidence is conclusive, such as a written and signed agreed stipulation of evidence or 'indisputable visual evidence,' then any trial-court findings inconsistent with that conclusive evidence may be disregarded as unsupported by the record, even when that record is viewed in a light most favorable to the trial court's ruling.'" Id.
ANALYSIS
The issue in this case is whether Deputy Rangel had reasonable suspicion to initiate a traffic stop on McMahan for either: (1) driving on an improved shoulder of a roadway in violation of Section 545.058(a) of the Transportation Code; or (2) failing to maintain a single lane of traffic in violation of Section 545.060(a) of the Transportation Code. We will focus our analysis on Section 545.058(a).
In his brief, McMahan contends that the only traffic violation we should consider is Section 545.060 because the State did not "clearly argue" Section 545.058 at the suppression hearing and thus it was not a "theory of law applicable to the case." See State v. Copeland, 501 S.W.3d 610, 613 (Tex. Crim. App. 2016); Hailey v. State, 87 S.W.3d 118,122 (Tex. Crim. App. 2002). On the contrary, the record reflects that the State argued the applicability of Section 545.058 throughout the hearing and in its post-submission briefing to the trial court, identifying the statute by name, discussing the statute's elements, and citing to cases that applied Section 545.058. The record also reflects that the trial court understood that the State was arguing Section 545.058, as the trial court questioned the parties during the hearing regarding the legal significance of McMahan crossing the fog line into the shoulder of the road.
Under Section 545.058(a), an operator of a motor vehicle "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; (3) to decelerate before making a right turn; (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn; (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 § 545.058(a). "It is a violation to 'drive on an improved shoulder'—thus an officer would have reasonable suspicion to stop a vehicle that was driving on an improved shoulder—if it appears that driving on the improved shoulder was not necessary to achieving one of the seven approved purposes or it appears that driving on the improved shoulder could not be done safely." State v. Cortez, 543 S.W.3d 198, 205 (Tex. Crim. App. 2018). In other words, "the offense of illegally driving on an improved shoulder can be proved in one of two ways: either driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on the improved shoulder could not have been done safely." Lothrop v. State, 372 S.W.3d 187, 191 (Tex. Crim. App. 2012).
Here, there is nothing in the record to suggest that McMahon's driving on the shoulder of the road was unsafe. Thus, his driving on the shoulder of the road would be permissible if there was evidence that doing so was necessary to achieve one of the seven purposes specified in the statute. However, the record contains no such evidence. There is nothing in the record tending to show that McMahan was driving on the shoulder of the road to: (1) stop, stand, or park; (2) accelerate before entering the main traveled lane of traffic; (3) decelerate before making a right turn; (4) pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn; (5) allow another vehicle traveling faster to pass; (6) comply with an official traffic-control device; or (7) avoid a collision. Nor has McMahon argued any of these statutory justifications for his driving on the shoulder of the road, either on appeal or in the court below. His sole contention is that it was not unsafe for him to do so. However, Section 545.058(a) requires that driving on the shoulder of the road be both safe and necessary. See Cortez, 543 S.W.3d at 205; Lothrop, 372 S.W.3d at 191; State v. Dietiker, 345 S.W.3d 426, 430 (Tex. App.—Waco 2011, no pet.).
The trial court, rather than focusing on the statutory justifications (or lack thereof) for McMahan's driving on the shoulder of the road, attempted to distinguish between "drifting" and "driving." Specifically, the trial court found that "Deputy Rangel did not observe, nor did the State present any evidence that Mr. McMahan was driving on an improved shoulder as contemplated by § 545.058. [Rangel] observed only Mr. McMahan's right-side tires drift over the solid white line to the right of his lane." However, it is well established that when a vehicle's tires cross the fog line onto the shoulder of the roadway, even for a brief amount of time, this constitutes "driving" on the shoulder of the road for purposes of Section 545.058(a). See Dietiker, 345 S.W.3d at 430-31 (officer had reasonable suspicion to initiate traffic stop when vehicle had "one incursion over the fog line for three or four seconds"); Tyler v. State, 161 S.W.3d 745, 750 (Tex. App.—Fort Worth 2005, no pet.) (officer had reasonable suspicion to initiate traffic stop when he observed appellant's vehicle "cross over the solid white line separating the traveling lane from the shoulder and 'straddle' it 'for a few moments.'"); see also Stegal v. State, No. 05-16-00098-CR, 2017 WL 1536516, at *1, *4 (Tex. App.—Dallas Apr. 26, 2017, no pet.) (mem. op., not designated for publication) (officer had reasonable suspicion to initiate traffic stop when he observed driver's right tires swerve onto shoulder of roadway at least two times and video recording of stop showed "right two tires of appellant's vehicle . . . crossing over the right-hand fog line for a few seconds before the vehicle swerved back into the lane at least two occasions"); State v. Hanath, No. 01-08-00452-CR, 2010 WL 3833919, at *1, *4 n.4 (Tex. App.—Houston [1st Dist.] Sept. 30, 2010, no pet.) (mem. op., not designated for publication) (officer had reasonable suspicion to initiate traffic stop when he observed "the two right tires of appellee's truck briefly drift across the white fog line and onto the improved shoulder"; court noted that "the fact that the two right tires on appellee's truck were only on the shoulder for mere seconds does not affect the application of section 545.058(a)"); State v. Wise, No. 04-04-00695-CR, 2005 WL 2952357, at *3 (Tex. App.—San Antonio Oct. 26, 2005, no pet.) (mem. op., not designated for publication) (officer had reasonable suspicion to initiate traffic stop when vehicle "veered onto the shoulder of the road with both right tires crossing over the white line" before returning back to lane); cf. Texas Dep't of Pub. Safety v. Skinner, No. 03-07-00679-CV, 2009 WL 349158, at *2 (Tex. App.—Austin Feb. 12, 2009, no pet.) (mem. op.) (officer had reasonable suspicion to initiate traffic stop when he observed "vehicle leave its lane—such that its right tires crossed over the white line separating the far right lane from the right shoulder of the highway (the 'fog line')—and then return"; this Court concluded that Section 545.058(a) "does not qualify the term 'drive' with 'substantially,' 'for an appreciable distance,' or any other qualifier that would suggest that the term 'drive' contemplates something more than driving on the shoulder momentarily or briefly").
Here, Deputy Rangel testified that he observed McMahan's vehicle "drift past the solid white line onto the shoulder" of the roadway and "ride the edge of the grass line," and there is indisputable visual evidence that McMahan's right tires had crossed the fog line completely and were on the shoulder of the road for approximately five seconds. In the video, the truck can be seen more than merely "drifting" momentarily across the fog line—the right tires go completely into the shoulder and at one point come near the grass line. During that time, the truck appears to be straddling the fog line, with the passenger side of the truck driving in the shoulder. Additionally, although the video recording showed the truck cross the line once, Rangel testified that he saw it cross the line twice. Also, there was no suggestion that it was necessary under the circumstances for McMahan to drive on the shoulder. Thus, Rangel had reasonable suspicion to believe that McMahan was driving on the shoulder of the roadway in violation of Section 545.058(a), and the trial court erred in concluding otherwise. See State v. Munsey, 424 S.W.3d 767, 773-74 (Tex. App.—Fort Worth 2014, no pet.); Dietiker, 345 S.W.3d at 430-31; see also State v. Piedra, No. 13-13-00540-CR, 2015 WL 5576346, at *5 (Tex. App.—Corpus Christi-Edinburg June 25, 2015, no pet.) (mem. op., not designated for publication) (reversing trial court's order granting motion to suppress when indisputable video evidence showed that vehicle drove on shoulder of roadway and there was no statutory justification for doing so); State v. Lockhart, No. 07-04-0304-CR, 2005 WL 1838457, at *2-3 (Tex. App.—Amarillo Aug. 2, 2005, no pet.) (op., not designated for publication) (reversing trial court's suppression order when officer testified that "the right side tires crossed over the solid white stripe a couple times" for "no more than a few seconds").
Because we conclude Deputy Rangel had reasonable suspicion to believe that McMahan had violated Section 545.058(a), we need not consider whether Rangel also had reasonable suspicion to believe that McMahan had violated Section 545.060(a). See Munsey, 424 S.W.3d at 774 n.5; see also Tex. R. App. P. 47.1. We sustain the State's first issue on appeal.
We need not address the State's second and third issues, in which the State complains of the trial court's failure to make certain fact findings. Prior to submission, we abated this appeal and remanded the case to the trial court for entry of more specific findings, and the trial court complied with our order. See State v. McMahan, No. 03-19-00824-CR, 2020 WL 5392751 (Tex. App.—Austin Sept. 4, 2020) (per curiam order) (mem. op., not designated for publication).
CONCLUSION
We reverse the trial court's order granting McMahan's motion to suppress and remand this cause to the trial court for further proceedings consistent with this opinion.
/s/_________
Gisela D. Triana, Justice Before Justices Goodwin, Triana, and Smith Reversed and Remanded Filed: November 6, 2020 Do Not Publish