                          NUMBER 13-18-00244-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                         Appellant,

                                            v.

SHEILA JO HARDIN,                                                           Appellee.


                    On appeal from the 319th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION

             Before Justices Benavides, Hinojosa, and Perkes
                Memorandum Opinion by Justice Hinojosa

      The State of Texas appeals the trial court’s order granting appellee Sheila Jo

Hardin’s motion to suppress evidence following a warrantless traffic stop. In a single

issue, the State argues that the trial court erred in concluding that the detaining officer

lacked reasonable suspicion to believe that Hardin committed a traffic offense by failing
to maintain a single lane of traffic. See TEX. TRANSP. CODE ANN. § 545.060. We affirm.

                                     I.     BACKGROUND

       A grand jury returned an indictment charging Hardin with the following offenses:

fraudulent possession of identifying information, see TEX. PENAL CODE ANN. § 32.51, and

forgery of a government instrument.        See id. § 32.21.   Hardin subsequently filed a

motion to suppress evidence obtained during the traffic stop.

       David Alfaro, an officer with the City of Corpus Christi Police Department, was the

State’s sole witness at the suppression hearing. Officer Alfaro testified that he observed

a U-Haul truck at around 1:19 a.m. parked at a fast food restaurant in Corpus Christi,

Texas. He recalled that he had received a notice to “be on the lookout” (BOLO) for a U-

Haul that was suspected of being involved in multiple burglaries. Officer Alfaro followed

the U-Haul in his marked patrol car onto I-37, and he later observed the vehicle’s tires

cross the white line into the adjacent lane for a “couple seconds.” Officer Alfaro then

initiated a traffic stop based upon his suspicion that the vehicle’s driver committed the

offense of “failure to maintain [a] single lane of travel.”

       The trial court admitted into evidence the dash-cam video from Officer Alfaro’s

patrol vehicle, which it then viewed. The video depicts Hardin’s vehicle traveling in the

center lane of a three-lane divided highway. There are no other vehicles visible on

Hardin’s side of the highway for the duration of the video. The passenger side rear tire

of Hardin’s vehicle can be seen straddling the lane divider shortly after rounding a curve.

The vehicle then moves slowly toward the opposite lane divider, while remaining in its

lane. At this point, Officer Alfaro activates his patrol lights, and Hardin responds by


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exiting the highway and pulling over.

       The trial court signed an order granting Hardin’s motion to suppress, which was

supported by the following findings of fact and conclusions of law:

                                   FINDINGS OF FACT.

               1. The trial court finds credible the testimony of Corpus Christi Police
       Officer D. Alfaro that on April 23, 2017, he observed Sheila Jo Hardin’s
       vehicle traveling on the highway in front of him in the marked center lane of
       travel, and that he initiated a traffic stop for failure to maintain a single lane
       after he observed Hardin’s tires cross over the striped lines marking the
       center lane without Hardin signaling a lane change, although there were no
       other vehicles in the vicinity at the time or any other circumstance to suggest
       that this movement was unsafe. The trial court further finds that a video
       recording of Hardin’s vehicle made at the time of these observations and
       entered into evidence at the hearing on [the] motion to suppress supports
       Officer Alfaro’s testimony.

                2. The Court further finds there was no evidence concerning the time
       of alleged burglaries or the BOLO regarding the U-Haul, the source of the
       information that a U-Haul was involved in burglaries in the area; or the
       reliability of the source, and there was no description of the vehicle
       regarding size, license plate, etc., from which an officer could reasonably
       suspect Defendant’s vehicle might be involved in or have evidence of
       criminal activity.

                                  CONCLUSION OF LAW.

              The trial court concludes that Officer Alfaro lacked reasonable
       suspicion to detain Hardin at the time he initiated a traffic stop and that all
       evidence obtained as a result of this illegal detention should be suppressed.

       This interlocutory appeal followed.           See TEX. CODE CRIM. PROC. ANN.

art. 44.01(a)(5).

                                     II.     DISCUSSION

       The State argues that the trial court erred in concluding that Officer Alfaro lacked




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reasonable suspicion to stop Hardin for committing a traffic offense. 1 Specifically, the

State maintains that “[f]ailure to maintain a single lane, whether or not it can be done

safely, is a traffic violation which in itself provided reasonable suspicion for Officer Alfaro

to stop Hardin.”

A.     Standard of Review and Applicable Law

       The Fourth Amendment protects against unreasonable searches and seizures.

U.S. CONST. amend. IV.         A warrantless traffic stop is a Fourth Amendment seizure

analogous to a temporary detention, and it must be justified by reasonable suspicion.

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). An officer may

conduct a traffic stop if the officer has reasonable suspicion that the person has committed

a traffic violation.   Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992).

Reasonable suspicion exists if the officer has specific, articulable facts that, combined

with rational inferences from those facts, would lead the officer to reasonably conclude

that the person is, has been, or soon will be engaged in criminal activity. Castro v. State,

227 S.W.3d 737, 741 (Tex. Crim. App. 2007).                This is an objective standard that

disregards any subjective intent of the officer making the stop and looks solely to whether

an objective basis for the stop exists. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim.

App. 2005). A reasonable-suspicion determination is made by considering the totality of

the circumstances. Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007).

       We review a trial court’s ruling on a motion to suppress under a bifurcated standard

of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We afford


       1  The State does not maintain on appeal that the BOLO provided Officer Alfaro with reasonable
suspicion to stop Hardin, nor does it challenge the trial court’s finding in that regard.
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almost total deference to a trial court’s determination of historical facts when supported

by the record, but we review pure questions of law de novo. Alford v. State, 358 S.W.3d

647, 652 (Tex. Crim. App. 2012). Likewise, we give almost total deference to a trial

court’s resolution of mixed questions of law and fact if those questions turn on the

credibility and demeanor of witnesses. Id. However, if credibility and demeanor are not

necessary to the resolution of a mixed question of law and fact, we review the question

de novo. Id. We apply this deferential standard to videotape evidence admitted at a

suppression hearing when that videotape recording was used to determine historical

facts. Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. App. 2012). This standard

requires that we defer to the trial court’s finding on whether a witness actually saw or

heard what was depicted in a videotape. State v. Duran, 396 S.W.3d 563, 571 (Tex.

Crim. App. 2013).     But we may reject a trial court’s fact finding if it is contrary to

“indisputable visual evidence.” Id.

       Here, whether there was reasonable suspicion to detain Hardin is not a function of

Officer Alfaro’s demeanor or credibility, but of the legal significance of the uncontested

facts. Therefore, we review de novo the ultimate question of whether Officer Alfaro was

justified in stopping appellant’s vehicle. See State v. Ford, 537 S.W.3d 19, 23 (Tex.

Crim. App. 2017) (“[W]hether the facts, as determined by the trial court, add up to

reasonable suspicion . . . is a question to be reviewed de novo.”).

B.     Analysis

       Section 545.060(a) of the transportation code provides that “[a]n operator on a

roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly


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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(a).             We have

previously held that “weaving somewhat in one’s own lane of traffic,” without evidence

indicating that such movement was unsafe, does not furnish an officer with reasonable

suspicion of a § 545.060(a) violation. State v. Cerny, 28 S.W.3d 796, 801 (Tex. App.—

Corpus Christi–Edinburg 2000, no pet.); see also State v. Alvarez, No. 13-14-00061-CR,

2015 WL 4593832, at *4 (Tex. App.—Corpus Christi–Edinburg July 30, 2015, no pet.)

(mem. op., not designated for publication).

       In Cerny, a state trooper noticed the defendant’s car when it “just barely” swerved

across the center line into the trooper’s lane of traffic. 28 S.W.3d at 798. The trooper

made a U-turn, began to follow the defendant, and turned on the vehicle’s dash-cam. Id.

He then observed the car swerve over the solid white line separating the traffic lane from

the right shoulder of the road three or four times. Id. In reviewing whether there was

reasonable suspicion to conduct a traffic stop, we followed two of our sister courts’

opinions which concluded that a violation of § 545.060 occurs only when a vehicle fails to

stay within its lane of traffic and such movement is unsafe. 2 Id. While the testimony

established that the defendant was weaving and had crossed partially into another lane

and the shoulder, there was no evidence that his actions were unsafe.                    Id. at 801.

Absent such evidence, we held that the trooper lacked reasonable suspicion to believe

that the defendant committed a traffic violation. Id. at 801.

       Subsequently, a plurality of the Texas Court of Criminal Appeals interpreted


       2  See Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.—Austin 1998, pet. ref’d) and State v.
Tarvin, 972 S.W.2d 910, 912 (Tex. App.—Waco 1998, pet. ref’d).
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§ 545.060 as creating two separate offenses. Leming v. State, 493 S.W.3d 552, 559

(Tex. Crim. App. 2016). In Leming, the four-judge plurality3 stated:

       [I]t 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.

Id. at 559–60.      Plurality opinions have persuasive value, but they do not constitute

binding authority. Vasquez v. State, 389 S.W.3d 361, 370 (Tex. Crim. App. 2012). We

are bound by this Court’s prior holding absent an intervening and material change in the

statutory law or a decision from a higher court or this Court sitting en banc that is on point

and contrary to the prior panel decision. In re Estrada, 492 S.W.3d 42, 48 (Tex. App.—

Corpus Christi–Edinburg 2016, no pet.); Medina v. State, 411 S.W.3d 15, 20 n.5 (Tex.

App.—Houston [14th Dist.] 2013, no pet.). Because Leming’s plurality opinion is not

binding authority, Cerny remains controlling precedent.               See State v. Bernard, 503

S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2016) (concluding that the Fourteenth

Court of Appeals was bound by its own precedent which was contrary to the Leming

plurality’s construction of § 545.060 of the transportation code), judgment vacated on

other grounds, 512 S.W.3d 351 (Tex. Crim. App. 2017).

       Here, after viewing the dash-cam video and hearing Officer Alfaro’s testimony, the

trial court found that Officer Alfaro observed the tires of Hardin’s vehicle cross minimally

into an adjacent lane after rounding a curve in the road. The trial court further found that

Hardin’s actions were not unsafe, a finding the State does not challenge on appeal and


       3 A majority of the justices failed to join only Part II of the Leming opinion, which interpreted
§ 545.060 of the transportation code. Leming v.State. 493 S.W.3d 552 (Tex. Crim. App. 2016).
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which is supported by the record. Therefore, in accordance with this Court’s precedent,

we conclude that Officer Alfaro did not have reasonable suspicion to stop Hardin for

violating § 545.060 of the transportation code. See Cerny, 28 S.W.3d at 801. Because

this was the only articulated basis for the detention, we hold that the trial court did not err

in granting Hardin’s motion to suppress. We overrule the State’s sole issue.

                                     III.   CONCLUSION

       We affirm the trial court’s suppression order.

                                                                 LETICIA HINOJOSA
                                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of August, 2019.




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