Opinion
No. 05-09-00731-CR
Opinion issued June 30, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law, Kaufman County, Texas, Trial Court Cause No. 08CL-0799.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
OPINION
Charles C. Gunderson was charged with driving while intoxicated, enhanced by a prior DWI conviction. He moved to suppress the evidence obtained at the time of his apprehension, following what he contends was an illegal traffic stop. The trial court initially granted the motion. The State filed a motion to reconsider that ruling, however, and the trial court eventually denied the motion to suppress. Gunderson pleaded nolo contendere; the court assessed his sentence at 180 days in county jail, probated for twenty-four months, and a $1000 fine. In a single appellate issue, Gunderson challenges the trial court's order denying his motion to suppress. We affirm the trial court's order.
The State pointed out in its brief that no certification of Gunderson's right to appeal had been filed. This Court directed the trial court to file a certification, and the trial court clerk has done so. See Tex. R. App. P. 34.5(c).
Background
Trooper John Logan, a six-year veteran of the Texas Department of Public Safety, testified at the hearing on the motion to suppress. Logan testified he was on patrol on Highway 175 in Kaufman County at approximately 1:30 on the morning at issue, when Gunderson's vehicle passed him. Logan observed the vehicle travel onto the shoulder of the roadway. Logan also heard the noise the vehicle made as the tires remained on the rumble strip for a minimum of five seconds. Logan testified it would be unreasonable for a vehicle to remain on the rumble strip for that long; ordinarily if a driver hits the strip, he immediately returns to the roadway. He testified it did not appear to be necessary for Gunderson to be on the shoulder: Gunderson was not stopping, standing, or parking; he was not attempting to accelerate before entering the traveled lane; he was not decelerating before making a right turn; he was not passing another vehicle or allowing another vehicle to pass him; he was not obeying directives of a traffic control device; and he was not trying to avoid a collision. Based on these facts, Logan stopped Gunderson for driving on the improved shoulder. As a result, Logan discovered evidence Gunderson was driving while intoxicated. On cross-examination, Logan testified he heard the rumble, and then a break in that noise, and then the rumble again: the right tires on Gunderson's vehicle actually crossed all the way over the rumble strip and then returned to it when Gunderson finally corrected his swerve. But Logan agreed that Gunderson's vehicle was never entirely on the shoulder. And he agreed that Gunderson's conduct was not a danger to any other vehicles in the area. Logan disagreed that the purpose of the statute making it an offense to drive on the improved shoulder of a roadway was to prohibit a vehicle from driving long distances entirely on the shoulder. Logan's training taught him that once a vehicle crossed the fog line-as long as no statutory reasons for driving on the shoulder applied-the violation had occurred. His understanding, based on his training, was the statute does not include any minimum amount of time the vehicle must remain on the shoulder; nor does it require all four tires to be on the shoulder. Finally, Logan testified that when a vehicle is drifting between lanes or travels onto the improved shoulder, especially at that time of early morning, there is a good chance alcohol is involved. As Logan explained:I do sometimes and have made several DWI arrests from this traffic violation. The roads are marked, it's clear where it ends. And, when I have got a vehicle that's traveling over that fog line onto the shoulder, especially at this hour, I need to get out there and get the vehicle stopped and find out what's going on.Logan stated he was suspicious of a potential DWI that night, based on his experience and the facts he observed. Then, on redirect, the following exchange took place:
Q. So, basically, you don't really care about the rumble strip, you're just looking for an excuse to stop a vehicle? That's okay, if that's what you're doing, that's what you're doing?
A. If I can get up there and get it stopped, yes, sir.
Q. Okay. You're agreeing with me it's a pretext for a stop, so you can look further. I got it. Nothing further. Thank you.
Standard of Review
A traffic stop is justified if the officer has specific articulable facts that, when combined with rational inferences from those facts, would give him a reasonable suspicion that the driver has engaged in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). This standard is an objective one; so long as there is an objective basis for the stop, the subjective intent of the officer conducting the stop is irrelevant. Id. The reasonable suspicion determination is made by considering the totality of the circumstances. Id. And in conducting the totality of the circumstances determination, we use a bifurcated standard. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total deference to the trial court's determination of historical facts, and we review de novo the trial court's application of law to facts not turning on credibility and demeanor. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). The trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. St. George, 237 S.W.3d at 725. We review the record to determine whether the trial court's ruling is supported by the record and is correct under some theory of law applicable to the case. Id.Driving on the Improved Shoulder
The dispositive issue in this appeal is whether Trooper Logan reasonably suspected that Gunderson's conduct represented a violation of the transportation code. If he did, then the stop was valid, and the trial court correctly denied the motion to suppress. Garcia, 43 S.W.3d at 530; see also Tex. Transp. Code Ann. § 543.001 (Vernon 1999) (any peace officer may arrest, without warrant, person found committing violation of transportation code's rules of the road). Logan stopped Gunderson for driving on the improved shoulder. The relevant statute provides: 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;
(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.Id. § 545.058(a). Trooper Logan negated all seven circumstances that would have permitted Gunderson to drive on the shoulder in this case, so we are left with the general prohibition of driving on the shoulder. Gunderson argues his conduct does not fit within this prescribed conduct; he contends section 545.058 "logically contemplates a more lengthy intrusion" upon the shoulder. But the statute does not set a minimum amount of time the vehicle must remain on the shoulder. Moreover, some number of the seven permitted intrusions on the shoulder (e.g., accelerating, decelerating, allowing another vehicle to pass) could be accomplished in approximately five seconds depending on the circumstances. Gunderson also suggests that his conduct did not violate section 545.068 because his entire vehicle never crossed the fog line onto the shoulder. But the statute includes no such requirement. And, once again, it is certainly possible that some of the permitted intrusions on the shoulder (e.g., passing a disabled vehicle, avoiding a collision) might be accomplished without the entire vehicle leaving the roadway. It appears, therefore, that the Legislature may well have contemplated brief and partial intrusions onto the shoulder when it was crafting section 545.058. At a minimum, the Legislature did not exempt such limited intrusions from the scope of the section. We decline to graft requirements of time and manner onto a statute when the Legislature avoided such limitations. Accordingly, we conclude that Logan's testimony-that he observed Gunderson's right tires cross over the fog line and remain on the rumble strip for at least five seconds-articulated facts giving him a reasonable suspicion that Gunderson violated section 545.058. Gunderson argues his conduct more appropriately implicated an offense under the section titled Driving on Roadway Laned for Traffic. See Tex. Transp. Code § 545.060(a). Because we have found support for the stop under section 545.058, we need not address this argument. Gunderson also implies-without making a legal argument-that Logan's stop might be invalid as a pretext stop. But reasonable suspicion is an objective determination; Logan's motives for conducting the stop were irrelevant to the validity of the stop. See Garcia, 43 S.W.3d at 530.