                                    IN THE
                            TENTH COURT OF APPEALS

                                    No. 10-10-00278-CR

THE STATE OF TEXAS,
                                                                   Appellant
    v.

RICHARD LOUIS DIETIKER,
                                                                   Appellee


                         From the County Court at Law No. 2
                              McLennan County, Texas
                            Trial Court No. 2010-1286-CR2


                                         OPINION


         The State of Texas appeals from the granting of Richard Louis Dietiker’s motions

to suppress evidence pursuant to Code of Criminal Procedure article 38.29. After a

traffic stop, Dietiker was charged with the offense of evading arrest. 1 TEX. PEN. CODE

ANN. § 38.04 (Vernon 2003).          The State complains that the trial court erred in its

determination that the officer did not have a reasonable suspicion that Dietiker had

committed a traffic violation and therefore it was erroneous to grant Dietiker’s motion.



1 Dietiker was also charged at that time with the offense of Driving While Intoxicated, which is the
subject of a separate appeal in this Court, No. 10-10-00277-CR.
Because we find that the trial court erred by granting the motion to suppress, we

reverse the judgment of the trial court and remand for further proceedings.

Standard of Review

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

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007). In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial judge is

the sole trier of fact and judge of the credibility of the witnesses and the weight to be

given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State

v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v.

Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006).

        When reviewing the trial court’s ruling on a motion to suppress, we must view

the evidence in the light most favorable to the trial court’s ruling. Wiede, 214 S.W.3d at

24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court

makes explicit fact findings, we determine whether the evidence, when viewed in the

light most favorable to the trial court’s ruling, supports those fact findings. Kelly, 204

S.W.3d at 818-19. However, when application-of-law-to-fact questions do not turn on

the credibility and demeanor of the witnesses, we review the trial court’s ruling on

those questions de novo. Amador, 221 S.W.3d at 673. We also review the trial court’s

legal ruling de novo unless its explicit findings that are supported by the record are also

dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.




State v. Dietiker                                                                    Page 2
Burden of Proof

        In a hearing on a motion to suppress evidence based on an alleged Fourth

Amendment violation, the initial burden of producing evidence that rebuts the

presumption of proper police conduct is on the defendant. Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005). This burden may be met by establishing that a search or

seizure occurred without a warrant. Id. After this showing is made by the defendant,

the burden of proof shifts to the State, at which time the State is required to establish

that the search or seizure was conducted pursuant to a warrant or was reasonable. Id.

In this proceeding, the State stipulated that the stop was made without a warrant and

assumed the burden of proof regarding whether reasonable suspicion for the stop

existed.

Reasonable Suspicion

        An officer conducts a lawful temporary detention when he has reasonable

suspicion to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997)

(citing Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Reasonable

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

rational inferences from those facts, would lead him to reasonably conclude that a

particular person actually 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, 158 S.W.3d at 492. A reasonable-


State v. Dietiker                                                                     Page 3
suspicion determination is made by considering the totality of the circumstances. Curtis

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

Traffic Violation

        The State contends that Dietiker committed a violation of section 545.058(a) of

the Transportation Code, entitled “Driving on Improved Shoulder.” Section 545.058(a)

of the Transportation Code states that:

        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.

TEX. TRANSP. CODE ANN. § 545.058(a) (Vernon 1999).

        It is undisputed that the tires on the passenger side of the vehicle Dietiker was

driving crossed over the “fog line,” which is the white line that separates the right lane

of traffic from the shoulder of an improved road. The trial court’s written finding of

fact is that Dietiker’s tires crossed that line “one time, then quickly crossed back into the

intended lane of travel. There was nothing else unusual about Dietiker’s driving.”



State v. Dietiker                                                                      Page 4
        The officer stated that the only reason that he stopped Dietiker was based on this

one incursion over the fog line for three or four seconds and that it was late at night and

windy, and therefore, it was difficult for him to see if there was a pedestrian or other

vehicle on the road. The road was two lanes wide in each direction. There was no

evidence relating to necessity or any of the seven permitted reasons for driving on an

improved shoulder.

Trial Court’s Conclusions of Law

        The trial court’s oral and written conclusions of law demonstrate that the trial

court’s decision granting the motion to suppress was based entirely upon this Court’s

holding in State v. Tarvin. See State v. Tarvin, 972 S.W.2d 910 (Tex. App.—Waco 1998,

pet. ref’d). In Tarvin, this Court held that a short incursion onto the fog line did not

constitute reasonable suspicion to conduct a traffic stop pursuant to section 545.060 of

the Transportation Code without other evidence of it being unsafe, erratic, or the officer

is suspicious of other criminal activity such as intoxication.

        In this case, the trial court made a conclusion of law that a “car whose tires cross

the fog line one time and back into the intended lane of travel, where there is no:

inability to maintain a safe speed, swerving, or any unsafe driving maneuver is not a

violation of the law and does not constitute reasonable suspicion,” and cites Tarvin as

authority in support of this conclusion. The trial court further concluded that a “car

may deviate from its intended lane of travel if the movement is made safely,” and cites

section 545.060 in support of this conclusion.




State v. Dietiker                                                                     Page 5
        However, the State did not contend that Dietiker committed a violation of section

545.060. It is the State’s choice to determine which traffic violation it relies upon in

establishing reasonable suspicion for a traffic stop. Noack v. State, No. 11-07-00107-CR,

2008 Tex. App. LEXIS 8587 at *5 (Tex. App.—Eastland Nov. 13, 2008, no pet.) (mem. op.)

(not designated for publication). Once it makes that determination, the State then has

the burden of establishing a reasonable suspicion that this statute had been violated. Id.

Our inquiry, consequently, surrounds the statute on which the State relied, which was

section 545.058(a). Pursuant to section 545.058(a), safety is one factor that must be

established. However, if the incursion onto the shoulder was not necessary or none of

the statutory exceptions set forth in section 545.058(a) that permit a driver to drive on

the shoulder apply, whether or not Dietiker was driving safely was immaterial.

Because of this, the trial court’s conclusions of law revolving around a violation of

section 545.060 were erroneous. We must then determine whether the State met its

burden of proof to establish reasonable suspicion of a violation of section 545.058(a).

Analysis

        As stated previously, it is undisputed that the record before the trial court

contained no evidence that Dietiker’s driving on the improved shoulder was necessary

or was for one of the specific purposes authorized by statute. See, e.g., Tyler v. State, 161

S.W.3d 745, 750 (Tex. App.—Fort Worth 2005, no pet.) (finding probable cause to stop

appellant for driving on improved shoulder where record contained no evidence that

driving on shoulder was necessary under any of the statutory exceptions); Martinez v.

State, 29 S.W.3d 609, 611-12 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd) (holding


State v. Dietiker                                                                      Page 6
trial court could have found reasonable suspicion for stop based on statutory violation

for driving on shoulder where trooper testified driver drifted partially onto shoulder

with right tires before pulling back into his lane of traffic); Neskorik v. State, 2006 Tex.

App. LEXIS 2860, No. 07-04-0578-CR, 2006 WL 908502, at *2 (Tex. App.—Amarillo Apr.

10, 2006, no pet.) (holding reasonable suspicion supported stop where no

evidence suggested driving on shoulder was justified or necessary for any of the listed

statutory exceptions) (not designated for publication); Thorn v. State, 2006 Tex. App.

LEXIS 1668, No. 2-04-00567-CR, 2006 WL 496000, at *2 (Tex. App.—Fort Worth Mar. 2,

2006, no pet.) (holding reasonable suspicion was established by driving on shoulder

where no evidence revealed a necessity for doing so) (not designated for publication);

State v. Wise, 2005 Tex. App. LEXIS 10796, No. 04-04-00695-CR, 2005 WL 2952357, at *3

(Tex. App.—San Antonio Oct. 26, 2005, no pet.) (reversing trial court’s determination

that reasonable suspicion was lacking where officer testified that appellant drove on

improved shoulder and no evidence was presented that it was necessary for appellant

to drive on improved shoulder or that her actions fell within one of the permissible

purposes) (not designated for publication).

        Although the officer testified that he did not see Dietiker drive unsafely onto the

shoulder of the road, the evidence does not substantiate necessity or that one of the

statutory exemptions applied.      We find that without evidence of necessity or the

statutory exemptions, the State met its burden and was not required to negate necessity

or the statutory exemptions in order to establish reasonable suspicion. See generally TEX.

TRANSP. CODE ANN. § 542.301 (Vernon 1999) (setting forth general offense of the “Rules


State v. Dietiker                                                                     Page 7
of the Road” contained in subtitle C of the Transportation Code). This is because

necessity, safety, and the statutory exemptions are more in the nature of defenses rather

than exceptions. See TEX. PEN. CODE ANN. §§ 2.02, 2.03 (Vernon 2003). Therefore, there

was reasonable suspicion for the officer to believe that a violation of Section 545.058(a)

was transpiring. We find that the trial court’s decision to grant the motion to suppress

based on lack of reasonable suspicion for the initial stop was erroneous pursuant to

Section 545.058(a) of the Transportation Code. We sustain issue one.

Conclusion

        We find that the trial court erroneously applied section 545.060 in determining

whether reasonable suspicion to justify a traffic stop existed and further that the trial

court erred in granting Dietiker’s motion to suppress pursuant to section 545.058(a).

We reverse the decision of the trial court and remand this matter to the trial court for

further proceedings consistent with this opinion.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and Remanded
Opinion delivered and filed January 12, 2011
Publish
[CR25]




State v. Dietiker                                                                   Page 8
