Opinion
No. 04-16-00110-CR
11-09-2016
The STATE of Texas, Appellant v. Geovany HERNANDEZ, Appellee
MEMORANDUM OPINION
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 5716
Honorable N. Keith Williams, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
The State of Texas appeals the trial court's order granting a motion to suppress filed by Geovany Hernandez. The State asserts the trial court erred in misapplying the law regarding reasonable suspicion for a traffic stop to the historical facts. We affirm the trial court's order.
FACTUAL BACKGROUND
On December 22, 2014, Hernandez was a passenger in a vehicle stopped by Deputy Robert Blumrich and Sergeant Nick Moellering. Based on their investigation after the stop, Hernandez was arrested and was subsequently indicted for tampering with evidence by attempting to alter, destroy, or conceal marijuana. Hernandez filed a motion to suppress, alleging the officers did not have reasonable suspicion to stop the vehicle in which he was a passenger.
At the suppression hearing, Deputy Blumrich and Sergeant Moellering were the only witnesses who testified. Deputy Blumrich was on field training at the time of the stop which is the training undertaken when an officer first starts out on patrol. Sergeant Moellering was Deputy Blumrich's field training officer and was riding as a passenger in the patrol vehicle being driven by Deputy Blumrich. Deputy Blumrich observed a vehicle make an abrupt turn to the right as if it was going to make a U-turn to the left but instead continued straight down the road. After observing the abrupt turn, Deputy Blumrich followed the vehicle onto a highway and later activated his patrol car video. Deputy Blumrich testified he observed the vehicle cross the solid white line and go off onto the right shoulder of the road on two occasions. He also testified that driving on an improved shoulder is a traffic violation. Deputy Blumrich testified he initiated a traffic stop and noticed a strong odor of marijuana when he approached the vehicle. The videotape was played for the trial court, and Deputy Blumrich pointed out the two times he observed the vehicle cross the solid white line.
On cross-examination, Deputy Blumrich agreed a car was approaching from the opposite direction the second time the vehicle crossed the solid white line onto the shoulder of the road. Deputy Blumrich stated the highway was only two lanes, it was 9:00 p.m. and dark outside, and the speed limit was 55 mph. Deputy Blumrich agreed the vehicle did not cause any danger when it crossed the solid white line. Deputy Blumrich estimated he was 100 to 150 feet behind the vehicle the first time it crossed the solid white line and was closer the second time.
Sergeant Moellering had worked for the sheriff's office for eleven years and described his duties as "answering calls for service that range from civil disputes to thefts to conducting traffic enforcement, I have to supervise at least three people at any given time." Sergeant Moellering stated he was a field training officer which entailed "training up and coming deputies that don't have the experience" and "teach[ing] them policies, procedures and things like that." Sergeant Moellering also described the vehicle making an abrupt move to the right as if it was going to make a U-turn but then continued down the road. Sergeant Moellering testified the movement was not a traffic violation and was not captured on the video; however, the officers did not believe it was a normal movement. The officers followed the vehicle onto a highway and activated the video. The officers observed the vehicle drift over the solid white fog line two times. In response to whether he personally saw the vehicle actually cross the white line, Sergeant Moellering stated both passenger side tires crossed the line "specifically on the last time — or the last time before I think it was more evident." When asked whether he saw any indication the vehicle was trying to avoid a collision or make a turn when it went on the shoulder, Sergeant Moellering responded he did not see any obstructions on the roadway or the vehicle's turn signal indicating the vehicle was slowing to make a turn. Sergeant Moellering testified the vehicle was stopped to make sure there was not "some type of impairment going on that led to the operator making the driving movements that we did observe."
On cross-examination, Sergeant Moellering stated he was not looking for oncoming traffic when he saw the vehicle cross the solid white line the second time. Instead, he was only looking at the vehicle. Sergeant Moellering estimated the vehicle was six inches across the solid white line but stated the vehicle did not create any danger. With regard to whether the six-inch distance could be seen on the video, Sergeant Moellering responded the video was grainy and hard to see, but he thought the six-inch distance was evident.
During closing argument, Hernandez's attorney questioned whether the video showed the vehicle actually crossing the solid white line, noting driving on the line is not a violation. If the vehicle crossed the line on the second occasion, Hernandez's attorney argued the movement was prudent to avoid a collision with the car approaching from the opposite direction.
The prosecutor argued both officers testified a traffic violation was committed. The prosecutor also argued that even if the vehicle did not cross the solid white line, the officers reasonably believed the driver committed a traffic violation. Finally, the prosecutor argued even if no traffic violation was committed, the totality of the circumstances supported reasonable suspicion to stop the vehicle to investigate possible impairment or DWI.
During the hearing, the trial court watched the video several times. The trial court stated the vehicle was on the fog line but "it's not clear to me that he crossed over the fog line" the first time the officers testified the vehicle crossed over. With regard to the second time, the trial court first noted veering over as another car approaches with bright lights at nighttime is prudent to get a little bit further away out of concern for a head-on collision. The trial court then concluded, "The second one with the car oncoming, I believe it was a prudent maneuver for him to move over just a little bit just to avoid — there's nothing sudden, but I think that's what prudent drivers do, they'll veer over a little bit just to make sure it gives them a little cushion at nighttime, especially from another vehicle." The trial court stated he believed the officers were credible, but the video or "pictures don't lie" while an officer "could misperceive." Therefore, the trial court announced that he was granting the motion to suppress. The State appeals.
STANDARD OF REVIEW
We review a trial court's ruling on a motion to suppress for an abuse of discretion. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). We review the record in the light most favorable to the trial court's determination, and because the trial court is the sole trier of fact, we give almost total deference to its determination of historical facts. Id. We review the trial court's application of the law to the historical facts de novo. Id. We also "may review de novo 'indisputable visual evidence' contained in a videotape;" however, we "must defer to the trial judge's factual finding on whether a witness actually saw what was depicted on a videotape." State v. Duran, 396 S.W.3d 563, 570-71 (Tex. Crim. App. 2013).
REASONABLE SUSPICION
"An officer may make a warrantless traffic stop if the 'reasonable suspicion' standard is satisfied." Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015). "Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaged in criminal activity." Id. (internal citations omitted). "This is an objective standard that disregards the subjective intent of the officer and requires only some minimal level of justification for the stop." Brodnex v. State, 485 S.W.3d 432, 437 (Tex. Crim. App. 2016). Stated differently, reasonable suspicion must be based on "an objective perception of events rather than the subjective feelings of the detaining officer." Dickey v. State, 716 S.W.2d 499, 503 n.4 (Tex. Crim. App. 1986). An officer's mere "good faith perception, without more, is insufficient to constitute cause to initiate an investigatory detention." Domingo v. State, 82 S.W.3d 617, 621 (Tex. App.—Amarillo 2002, no pet.); see also Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987) (noting the "good faith of the investigating officer is never sufficient to justify a police officer to order a subject to stop his motor vehicle"). We review a reasonable suspicion determination by considering the totality of the circumstances. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
REASONABLE SUSPICION OF TRAFFIC VIOLATION
When an officer stops a vehicle because he has reasonable suspicion that a traffic violation has been committed, the question is not whether a traffic offense was actually committed but whether the officer had a reasonable suspicion that a violation had occurred. Jaganathan, 479 S.W.3d at 247. Although the operator of a vehicle generally may not drive on an improved shoulder, "the legislature gave us a statute that lists several situations in which driving on the shoulder may be permitted" if undertaken safely. Lothrop v. State, 372 S.W.3d 187, 190 (Tex. Crim. App. 2012). One of these situations is to avoid a collision. See id. at 189; TEX. TRANSP. CODE ANN. § 545.058(a) (West 2011). "[I]f an officer sees a driver driving on an improved shoulder, and it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, [the] officer does not have reasonable suspicion that an offense occurred." Lothrop, 372 S.W.3d at 191. Viewing the record in the light most favorable to the trial court, we examine each of the three requirements the Texas Court of Criminal Appeals has stated are necessary for an officer to have reasonable suspicion that an offense occurred under section 545.058(a) of the Texas Transportation Code ("Code"). See id.
Section 545.058 entitled "Driving on Improved Shoulder" provides:
(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;
(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.
A. Whether the Vehicle was Driving on the Improved Shoulder
The trial court found the vehicle did not cross over the line on the first occasion testified to by the officers. See State v. Cortez, 482 S.W.3d 176, 183-84 (Tex. App.—Amarillo 2015), vacated on other grounds, No. PD-1652-15, 2016 WL 59399477 (Tex. Crim. App. Oct. 12, 2016) (holding driving on the line is insufficient); State v. Rothrock, No. 03-09-00491-CR, 2010 WL 3064303, at *3 (Tex. App.—Austin Aug. 5, 2010, no pet.) (noting trial court could determine officer lacked reasonable suspicion where video did not establish vehicle crossed line with certainty). Because the videotape was not "indisputable visual evidence" that the vehicle crossed over the line, we must defer to the trial judge's determination of this historical fact. See Story, 445 S.W.3d at 732; Duran, 396 S.W.3d at 570-71. The trial court did, however, appear to agree the vehicle crossed the line on the second occasion observed by the officers.
B. Was Driving on the Improved Shoulder Necessary to Avoid a Collision?
Deputy Blumrich agreed a car was approaching from the opposite direction the second time the vehicle crossed the white line. Sergeant Moellering testified he was not looking at the oncoming traffic, and further testified as follows:
Q. Okay. Did you see any indication that the vehicle was trying to avoid a collision or trying to make a turn when they went on the shoulder, or were your lights on at that time when they went on the shoulder?Sergeant Moellering did not respond to the question asking whether the vehicle was trying to avoid a collision likely because he previously stated he was not looking for on-coming traffic. Therefore, neither officer testified as to whether or not driving the vehicle on the improved shoulder was necessary to avoid a collision.
A. The — I did not see any obstructions in the roadway that could lead to a car swerving during drifting out of the main lane of travel, nor did I observe a turn signal which would indicate to me that they were slowing to make a turn from the improved shoulder into a private drive or one of the roadways that's along the way.
And at that point our emergency lights were not activated to make the driver believe that we were going to pull over and they were supposed to yield to us for some reason.
After reviewing the videotape, however, the trial court found the movement of the vehicle was a prudent effort to avoid a potential head-on collision given the vehicles were traveling on a two-lane highway at night when the on-coming headlights were bright. The trial court noted as soon as the car approaching from the opposite direction passed the vehicle, the vehicle re-crossed the white line onto the road. The trial court also noted, the movement of the vehicle was very gradual and was not erratic or unstable. Deferring to the trial court's determination of the historical facts, "it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes," namely to avoid a collision. Lothrop, 372 S.W.3d at 191; see also State v. Victoria, 09-13-00132-CR, 2013 WL 2733015, at *2-3 (Tex. App.—Beaumont June 12, 2013, no pet.) (holding trial court reasonably could have found appellant drove onto the improved shoulder out of necessity and in a safe manner to avoid a collision with two on-coming vehicles where appellant's tires crossed the white fog line as the two vehicles approached and returned to the proper lane of traffic after the vehicles passed) (not designated for publication).
C. Whether Driving on the Improved Shoulder was Done Safely
Both officers testified the movement of the vehicle did not create any danger.
D. Analysis and Conclusion
As previously noted, the Texas Court of Criminal Appeals has stated, "if an officer sees a driver driving on an improved shoulder, and it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, [the] officer does not have reasonable suspicion that an offense occurred." Lothrop, 372 S.W.3d at 191. In this case, the trial court found "it appear[ed] that driving on the improved shoulder was necessary to achieving one of the seven approved purposes," and the officers testified the movement onto the shoulder was done safely. Id.
The State argues the trial court erred in relying on its own perception of the video because the officers reasonably believed a traffic violation occurred. The Texas Court of Criminal Appeals, however, has instructed us regarding the three factors that must be present in order for an officer to have a reasonable suspicion that a violation under section 545.058(a) of the Code has occurred. See id.; see also Heien v. North Carolina, 135 S. Ct. 475, 539-40 (2014) (noting officer can gain no advantage through "sloppy study of the law" when statute has been construed by appellate court). In the absence of those factors, the officers' mere good faith perception, without more, is insufficient to establish reasonable suspicion. See Hoag, 728 S.W.2d at 380; Domingo, 82 S.W.3d at 621. Viewing the record in the light most favorable to the trial court and deferring to the trial court's determination of the historical facts, we hold the trial court did not abuse its discretion in finding the officers did not have reasonable suspicion that the vehicle committed a traffic offense under section 545.058(a) of the Code.
REASONABLE SUSPICION OF IMPAIRMENT
The State next argues the trial court erred in granting the motion to suppress because the officers had reasonable suspicion that the driver of the vehicle was impaired. In support of its argument, the State relies on Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007) and State v. Alderete, 314 S.W.3d 469 (Tex. App.—El Paso 2010, pet. ref'd).
In Curtis, Kyle David Curtis was driving on a four-lane highway around 1:00 a.m. when two troopers observed his vehicle weaving in and out of his lane over a short distance. 238 S.W.3d at 377. Specifically, the vehicle weaved twice across the inside fog lane and once across the broken lane divider line in the span of several hundred yards as opposed to a quarter mile or so. Id. at 377 n.2. The trial court denied Curtis's motion to suppress; however, on appeal, the court of appeals reversed holding the officers lacked reasonable suspicion to stop Curtis's vehicle. Id. at 377-78.
The Texas Court of Criminal Appeals noted the court of appeals failed to consider: (1) the lateness of the hour; (2) the field training officer had been a state trooper for over 23 years and had received specialized training in detecting intoxicated drivers; (3) the specialized training taught that weaving in and out of a lane was a possible sign of intoxicated driving; and (4) Curtis weaved in and out of his lane at least three times over a relatively short distance of a few hundred yards. Id. at 380-81. The court asserted, "When viewed in light of the training officer's extensive experience in detecting intoxicated drivers, coupled with both officers' training to use the driver's weaving specifically as an indication of intoxicated driving, the trial court could have reasonably concluded that the articulated facts gave rise to enough suspicion to justify at least an investigation." Id. at 381. Therefore, the court held "the court of appeals erred in concluding that the trial court abused its discretion in overruling appellant's motion to suppress." Id.
In Alderete, two officers observed Ana Maria Alderete swerving inside her lane around 3:00 a.m. 314 S.W.3d at 471. The first officer testified that he had been an officer for a year and a half and had received training in the investigation of DWI offenses, including the traffic stops related to such offenses. Id. at 471. Based on his training and experience, the officer testified driving at nighttime and swerving within or outside a lane of traffic are common characteristics exhibited by an intoxicated driver. Id. The second officer testified he had been an officer for four years and also had received training in the investigation of DWI offenses. Id. Based on his training and experience, the second officer also found swerving within a lane of traffic and driving late at night to be common characteristics of a DWI offense. Id. The officers testified they observed Alderete swerving inside her lane as they followed her. Id. The officers could not recall how many times they saw the vehicle swerve; however, after following Alderete for half of a mile, they determined she was unable to drive in a straight manner and stay within the lane. Id. As a result, the officers initiated a traffic stop because they believed Alderete was intoxicated. Id. The trial court granted the motion to suppress concluding the officers lacked authority to initiate a stop. Id.
On appeal, the El Paso court reversed, noting the facts were "somewhat similar" to the facts in Curtis. Id. at 474. The court emphasized: (1) the stop occurred at 3:00 a.m.; (2) Alderete was unable to drive in a straight manner as she swerved within her lane for half of a mile on the interstate; (3) the officers testified they were trained to detect DWI offenses and weaving is a common characteristic of intoxicated drivers; and (4) the officers stated they received training in investigating DWI offenses and had investigated many such offenses. Id. The El Paso court held "the trial court's focus on the sole issue of weaving within the lane not giving rise to a reasonable suspicion that a traffic-code violation was committed, was error in that the court failed to consider whether the officers had reasonable suspicion, based on the totality of the circumstances, that Alderete was driving while intoxicated." Id.
The facts in the instant case are not similar to Curtis or Alderete. First, the officers began recording the vehicle at 9:00 p.m. as opposed to 1:00 a.m. or 3:00 a.m. Second, neither officer testified to having any specialized training or experience in detecting DWI offenses or any common characteristics an intoxicated driver displays. Third, the trial court found the vehicle had crossed over the solid white line on only one occasion, and the movement was necessary on that occasion to avoid a collision. Fourth, neither officer testified regarding the distance they followed the vehicle before or after activating the video. Finally, neither officer testified the vehicle was weaving back and forth. In addition, the video established the vehicle was being driven in a straight manner, and the trial court found the movement of the vehicle was gradual and not erratic or unstable. The video also established that one minute elapsed from the time the officers activated the video to the time they activated their lights to initiate the stop. At 55 mph, the vehicle could have traveled a distance of almost one mile during the time period after the video was activated which did not encompass the entire distance the officers observed the vehicle. Having considered the totality of the circumstances and deferring to the trial court's determination of historical facts, we hold the trial court did not abuse its discretion in granting the motion to suppress because the officers did not have reasonable suspicion that the driver of the vehicle was intoxicated.
The trial court stated, "When [the vehicle] did go over the fog line it was very gradual. The second time it was an oncoming vehicle, and it was very gradual, nothing erratic or unstable or in — you know, like you could infer from somebody who was under the influence for example." --------
CONCLUSION
The trial court's order is affirmed.
Sandee Bryan Marion, Chief Justice DO NOT PUBLISH
TEX. TRANSP. CODE ANN. § 525.058(a) (West 2011).