Opinion issued July 27, 2017




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-16-00713-CR
                            ———————————
                  JONATHAN DAVID MORALES, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 10
                           Harris County, Texas
                       Trial Court Case No. 2075290

                          MEMORANDUM OPINION

      After the trial court denied his motion to suppress, appellant, Jonathan David

Morales, pleaded guilty to driving while intoxicated (DWI). The trial court assessed

punishment at 180 days’ confinement, probated for one year, and assessed a $300

fine. In a single issue on appeal, appellant contends the trial court erred in denying

his motion to suppress. We affirm.
                                 BACKGROUND

       On February 19, 2016, Deputy Armand was patrolling the South Sam Houston

Parkway around 2:30 a.m. As Deputy Armand was patrolling, he saw appellant

driving on the improved right-hand shoulder as he was entering the freeway. This

entrance ramp was close to a bar that had just recently closed. Another car was in

the right lane of the freeway and was traveling the same speed that appellant was

traveling up the entrance ramp. The other vehicle moved to the left lane, and once

the other vehicle passed appellant, who continued to drive on the shoulder, the other

vehicle returned to the right lane in front of appellant. Appellant then left the

shoulder and finally moved his car to the center of the right lane.

       Deputy Armand did not immediately stop appellant because he wanted to see

if there was a “pattern to his driving.” As appellant drove, he weaved within his own

lane and at times his right wheels were on the line that separated the lane of traffic

from the shoulder, and at other times his left wheels crossed over the line separating

the lanes of traffic.

       Deputy Armand initiated a traffic stop and gave two reasons for doing so: (1)

driving on an improved shoulder and (2) failure to drive within a single lane. Deputy

Armand performed multiple sobriety tests, and after further investigation, arrested

appellant for driving while intoxicated. There was no warrant to arrest appellant, nor




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did Deputy Armand receive notifications of intoxicated drivers on the road that

night.

         Appellant filed a motion to suppress any and all evidence seized or obtained

as a result of the appellant’s detention. At the suppression hearing, a dash-cam video

from the traffic stop was introduced. Deputy Armand testified that he believed that

the other car moved to the left lane and passed up appellant because the driver saw

appellant’s vehicle driving on the shoulder. He also testified that, based on the

totality of the circumstances, it appeared to him appellant was impaired to a point

where it was unsafe for him to drive.

         The trial court found Deputy Armand’s testimony to be credible. The trial

court denied the motion to suppress and found that there was a reasonable suspicion

to conduct a traffic stop. The court issued an additional finding of fact and conclusion

of law that the stop was based on the officer’s reasonable suspicion of observing

traffic violations.

                                 MOTION TO SUPPRESS

         In his sole issue on appeal, appellant contends that the trial court erred by

refusing to suppress the evidence seized or obtained during his traffic stop.

Specifically, appellant contends that there was no reasonable suspicion he was

engaged in criminal activities as required to lawfully initiate a traffic stop under the

Fourth Amendment to the United States Constitution, Article 1, Section 9 of the

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Texas Constitution, and Chapter 38 of the Texas Code of Criminal Procedure.

Essentially, appellant argues that the evidence was seized as a result of an illegal

detention.

Standard of Review

      A trial court’s decision to grant or deny a motion to suppress is reviewed under

an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App.

1999). At a suppression hearing, the trial court is the exclusive trier of fact and judge

of the credibility of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997). We are also to afford such deference to a trial court’s ruling on

             “application of law to fact questions,” also known as “mixed questions

of law and fact,” if the resolution of those questions turns on an evaluation of

credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

We may review de novo those questions not turning on credibility and demeanor. Id.

If the trial judge makes express findings of fact, we view the evidence in the light

most favorable to his ruling and determine whether the evidence supports these

factual findings. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

When a trial court makes no explicit findings of historical fact, the appellate court

should view the evidence in the light most favorable to the trial court's ruling and

assume the trial court made implicit findings of fact. See Carmouche v. State, 10

S.W.3d 323, 328 (Tex. Crim. App. 2000).

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         REASONABLE SUSPICION TO INITATE TRAFFIC STOP

      The United States and Texas Constitutions protect against unreasonable

searches and seizures. U.S. CONST. amend. IV.; TEX. CONST. art I, § 9. No evidence

obtained in violation of the Constitution or the State of Texas can be admitted as

evidence against the accused at trial. TEX. CRIM. PROC. CODE ANN. § 38.23 (West

2017). Generally, a law enforcement officer must have a warrant based on probable

cause to search or seize an individual. Wright v. State, 7 S.W.3d 148, 150 (Tex. Crim.

App. 1999) (en banc). A policeman without a warrant may only detain a person

briefly if he has a reasonable suspicion that the person has or is breaking the law.

Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150 (1984).

      To suppress evidence based on a violation of the Fourth Amendment, the

defendant bears the initial burden of proof to rebut the presumption of proper police

conduct by establishing the search or seizure occurred without a warrant. Abney v.

State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013). The burden then shifts to the

State to prove that there was reasonable suspicion the person was violating the law.

Id. If the State has not shown sufficient evidence of a reasonable suspicion, then the

stop violates the Fourth Amendment. Brodnex v. State, 485 S.W.3d 432, 437 (Tex.

Crim. App. 2016).




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        There must be a reasonable suspicion for an officer to conduct an investigative

detention. Id. In order for an officer to have a reasonable suspicion, there must be

“specific and articulable facts” that justify the traffic stop from the inception. State

v. Duran, 396 S.W.3d 563, 568–69 (Tex. Crim. App. 2013) (quoting Terry v. Ohio,

392 U.S. 1, 20–21, 88 S. Ct. 1868, 1880 (1968)). These specific facts must

reasonably warrant the intrusion on the freedom of the citizen detained for further

investigation. Martinez v. State, 29 S.W.3d 609, 611 (Tex. App.—Houston [1st

Dist.] 2000, pet. ref’d).

        The trial court found that Deputy Armand initiated a traffic stop based on two

violations: (1) driving on the improved shoulder, and (2) failure to maintain a lane.

The issue becomes whether or not the State met its burden by presenting sufficient

evidence that Deputy Armand, at the time he initiated the traffic stop, had reasonable

suspicion that appellant was committing either of these violations.

Driving on an Improved Shoulder

        Appellant concedes that he drove onto the improved shoulder as he was

entering the highway. However, appellant contends that there was no reasonable

suspicion to initiate a traffic stop from this action. Merely driving on the improved

shoulder of the road is not prima facie evidence of an offense. Lothrop v. State, 372

S.W.3d 187, 191 (Tex. Crim. App. 2012). The Texas Transportation Code provides

that:

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      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 if:

             (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 ANN. § 545.058(a) (West 2011).

      The word “necessary” in the statue is not a free-standing requirement.

Lothrop, 372 S.W.3d at 190. Rather, “necessary” must be read in the context of the

seven enumerated reasons where driving on the shoulder is permissible. Id. 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, that officer does not have reasonable suspicion that

an offense occurred. Id. at 191. The legislature explicitly made this behavior legal,

and it would violate legislative intent to allow that behavior to serve as the basis of

a traffic stop or arrest. Id. The violation of illegally driving on an improved shoulder
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can be proved in one of two ways: either driving on the improved shoulder was not

a necessary part of the seven approved purposes, or driving on the improved shoulder

could not have been done safely. Id.

      Appellant contends that his driving was legal under Section 545.058 and

cannot be the basis for a stop based on reasonable suspicion. He cites three of the

permissible reasons in the statute for driving on the improved shoulder. The

appellant argues that it was necessary for him to drive on the improved shoulder: (1)

to accelerate before entering the main lane of traffic, (2) to allow another vehicle

traveling faster to pass, and (3) to avoid a collision. TEX. TRANSP. CODE ANN. §

545.058(a)(2), (5), (7). The State contends that the action was unnecessary and in

violation of Section 545.058.

      Appellant argues this case is similar to Lothrop v. State. In Lothrop, the

defendant was driving west and the police officer east on a two-lane road. 372

S.W.3d at 189. The car that was driving in front of the defendant slowed down at a

railroad crossing, and the defendant used the improved shoulder road to pass the car.

Id. He was stopped for illegally driving on the improved shoulder and subsequently

arrested for driving while intoxicated. Id. The police officer did not testify that using

the improved shoulder was unnecessary or unsafe. Id. at 191. The Court of Criminal

Appeals held that the police officer did not legally initiate the traffic stop because

there was no reasonable suspicion the defendant committed the violation of driving

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on an improved shoulder. Id. The court reasoned there was evidence the defendant

legally drove on the improved shoulder under section 545.058(a)(4) because it was

done out of necessity to pass a slowing car and safely. Id.

      Relying on Lothrop, appellant contends that the State failed to show driving

on the shoulder was unnecessary to achieve an approved purpose. Appellant argues

that like in Lothrop, Deputy Armand did not testify that appellant’s driving was

unnecessary to accomplish one of the three purposes. Furthermore, appellant states

the video demonstrates evidence that he drove on the improved shoulder legally.

Appellant contends that Deputy Armand misunderstood the law by believing that

driving on the improved shoulder is prima facie evidence of an offense.

      This case is distinguishable from Lothrop. Unlike the defendant in Lothrop,

who drove on the shoulder out of necessity to pass the car in front of him, the

evidence in this case does not show that it was necessary for appellant to drive on

the improved shoulder to achieve any of the three purposes he claims.

      First, it was not necessary for appellant to drive on the shoulder to accelerate

before entering the main traveled lane of traffic because he had an entire lane (the

entrance ramp) to accelerate. The defendant in Lothrop was driving on a two-lane

road that went opposite directions, and therefore had no choice but to drive on the

improved shoulder to pass the other driver. Id. at 189. Here, appellant was not limited




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in such a way. Rather, he had the entire entrance ramp that was parallel to the other

car on the highway, which made driving on the improved shoulder unnecessary.

      Second, it was not necessary for appellant to drive on the shoulder to allow

the other car to pass. The other car was already in a separate lane from appellant, yet

appellant continued to drive on the shoulder. The other car was capable of passing

appellant regardless of whether appellant drove on the shoulder or drove legally in

the entrance ramp lane. Thus, driving on the shoulder was unnecessary to achieve

such a purpose.

      Third, it was not necessary for appellant to drive on the improved shoulder to

avoid a collision. Deputy Armand initially observed appellant’s car driving on the

improved shoulder from the time he entered the ramp all the way up the ramp. There

was a wall separating the two main lanes of traffic and any other cars on the highway.

Appellant was on the shoulder before he was in proximity to the other car. Because

appellant was not in danger of colliding with the other car, it was not necessary for

him to drive on the shoulder to avoid it. Because the record supports the officer’s

reasonable conclusion that it was unnecessary for appellant to drive on the improved

shoulder for any of the permissible reasons, the officer had reasonable suspicion to

initiate a traffic stop and detain appellant. See Tyler v. State, 161 S.W.3d 745, 750

(Tex. App.—Fort Worth 2005, no pet.).

                                  CONCLUSION

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      Because appellant was lawfully stopped because of a reasonable suspicion

that he had committed the traffic violation of driving on an improved shoulder, the

trial court did not err by overruling appellant’s motion to suppress. Accordingly, we

overrule appellant’s sole issue on appeal.

      We affirm the trial court’s judgment.



                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Massengale.

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




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