                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00155-CR

THE STATE OF TEXAS,
                                                             Appellant
v.

TERILU DUBOIS HANRAHAN,
                                                             Appellee



                              From the County Court
                             Limestone County, Texas
                               Trial Court No. 34871


                          MEMORANDUM OPINION


       In this interlocutory appeal, appellant, the State of Texas, challenges the trial

court’s granting of a motion to suppress in favor of appellee, Terilu Dubois Hanrahan.

The complained-of evidence relates to a driving-while-intoxicated offense alleged to

have been committed on October 3, 2010. In three issues, the State argues that: (1) the

trial court should have dismissed appellee’s motion to suppress for failing to state a

ground on which relief could be granted; (2) reasonable suspicion of a crime does not

require that the crime actually be committed; and (3) the trial court abused its discretion
in failing to consider the totality of the circumstances regarding whether the arresting

officer had reasonable, articulable suspicion that appellee was intoxicated. We affirm.

                                    I.    BACKGROUND

       The only witness at the suppression hearing was the arresting officer, Officer

Brian Bell of the Mexia Police Department. Officer Bell testified that he observed

appellee driving eastbound on Milam Street at approximately 1:00 a.m. in Mexia, Texas.

He first noticed appellee’s vehicle “swerving from side to side within its lane.” Then,

“[t]he vehicle began to maintain a relatively straight path. As I started to slow down, I

observed the vehicle cross the white line, and it was traveling in the improved shoulder

while prohibited, leading me to believe the driver was possibly fatigued or intoxicated.”

Officer Bell noted that appellee’s alleged act of crossing the white line, otherwise known

as the “fog line,” was a violation of section 545.058(a) of the Texas Transportation Code

and supported a traffic stop. See TEX. TRANSP. CODE ANN. § 545.058(a) (West 2011). He

also stated that appellee’s alleged driving on the improved shoulder did not fall within

any of the seven enumerated exceptions to section 545.058(a). See id. § 545.058(a).

Officer Bell subsequently stopped appellee. When he approached appellee’s vehicle,

Officer Bell smelled alcohol on appellee’s breath; he noticed “[appellee’s] movements

were uncoordinated”; and appellee’s “speech was slurred.” Officer Bell asked appellee

if she had been drinking that evening to which she informed him that “she had been”

drinking at the Falcon, a bar in Mexia. He then administered field sobriety tests, all of

which appellee performed poorly. Appellee was asked to perform a Breathalyzer, but

she declined to participate. Officer Bell did not request a blood sample from appellee

State v. Hanrahan                                                                   Page 2
because it was her first offense and he believed he had sufficient evidence to

demonstrate that appellee “was not in control of her physical faculties and could not

safely operate another vehicle.”

       On cross-examination, Officer Bell was asked about his justification for stopping

appellee. He admitted that appellee’s alleged “swerving from side to side within [her]

lane” did not amount to a violation of the transportation code and, thus, did not

warrant a traffic stop, especially considering that appellee quickly “regained control of

the vehicle and was driving appropriately.” Officer Bell was asked about how the

video camera on his patrol car operates. He noted that he can activate the video camera

by pressing “record”; otherwise, the video camera automatically activates when the

lights and sirens of the patrol car are turned on. He admitted that he did not activate

the video camera himself; instead, the video camera activated when he turned on the

lights and sirens of the patrol car, which occurred just prior to appellee’s alleged traffic

violation. The video of the traffic stop was then admitted into evidence. Officer Bell

described that the violation of the transportation code which precipitated the traffic

stop was captured on the video. He was then asked to point out to the trial court

exactly where on the video appellee committed a traffic violation. At some point,

Officer Bell explained that appellee crossed the “fog line” and drove on the improved

shoulder.    When asked how far over the “fog line” appellee allegedly went, he

responded, “I can’t recall exactly. Probably just the passenger side tires probably just

crossed over.” Officer Bell acknowledged that no other aspect of the video captured a

traffic violation being committed by appellee. In questioning Officer Bell about the

State v. Hanrahan                                                                     Page 3
alleged traffic violation, the video was played several times during the suppression

hearing.

       At the conclusion of the hearing, the trial court granted appellee’s motion to

suppress and noted the following:

              If just—I’m not sure her tires moved the video. I couldn’t even tell
       [that she] was driving on the shoulder until he [Officer Bell] pointed it out,
       and her tires might have—I’m not even sure they crossed all the way
       across the white line. If that’s sufficient to call it driving on the shoulder, I
       don’t know if I have ever driven a car when I didn’t justify getting
       stopped.

               ....

             The testimony didn’t add anything to that, except to say that he
       had no justification for stopping her prior to the line—the tires touching
       the white line. I can’t call that driving on the improved shoulder. I think
       if he had given her a citation based upon that, nobody would have
       convicted her.

       As a result of the trial court’s ruling, the following evidence was suppressed:

       a. Any and all tangible evidence seized by law enforcement officers or
          others in connection with the detention and arrest of Terilu Dubois
          Hanrahan in this case or in connection with the investigation of this
          case, including any testimony by the Mexia Police Department or any
          other law enforcement officers or others concerning such evidence.

       b. The arrest of Terilu Dubois Hanrahan at the time and place in question
          and any and all evidence which relates to the arrest, and any testimony
          by the Mexia Police Department or any other law enforcement officers
          or others concerning any action of Terilu Dubois Hanrahan while in
          detention or under arrest in connection with this case.

       c. All written and oral statements made by Terilu Dubois Hanrahan to
          any law enforcement officers or others in connection with this case,
          and any testimony by the Mexia Police Department or any other law
          enforcement officers or others concerning any such statements.

The trial court also entered the following findings of fact:

State v. Hanrahan                                                                          Page 4
       1. The Defendant was stopped by the Mexia Police Department on
          October 3, 2010 in Limestone County, Texas.

       2. The Defendant’s vehicle did not travel on the improved shoulder of
          the highway prior to the stop by the police.

       3. The police officer did not have reason to have a reasonable suspicion
          that the Defendant had violated a law prior to stopping the Defendant.

This appeal followed.

                             II.    THE SUPPRESSION HEARING

       In its first issue, the State contends that the trial court abused its discretion in

holding a hearing on appellee’s motion to suppress because the motion “failed to

specifically state a ground on which relief could be granted” or, in other words, was

vague and lacking in specificity. The State argues that appellee’s motion to suppress

should have been dismissed without a hearing because of the alleged lack of specificity.

A. Standard of Review

       Courts have consistently approved the procedure of allowing a trial judge to

determine at which point a suppression motion will be heard. See Cox v. State, 843

S.W.2d 750, 752 (Tex. App.—El Paso 1992, pet. ref’d); see also Montoy v. State, No. 06-09-

00030-CR, 2009 Tex. App. LEXIS 8221, at *11 (Tex. App.—Texarkana Oct. 27, 2009, pet.

ref’d) (mem. op., not designated for publication). In fact, article 28.01 of the code of

criminal procedure prescribes the pre-trial motion practice for criminal cases. See TEX.

CODE CRIM. PROC. ANN. art. 28.01 (West 2006). However, the provisions of article 28.01

are not mandatory, and the question of whether to hold a pre-trial hearing on a pre-trial

motion to suppress evidence is within the sound discretion of the trial court. See

State v. Hanrahan                                                                    Page 5
Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988); Morrison v. State, 71

S.W.3d 821, 825-26 (Tex. App.—Corpus Christi 2002, no pet.); State v. Reed, 888 S.W.2d

117, 119 (Tex. App.—San Antonio 1994, no pet.); Cox, 843 S.W.2d at 752; see also Montoy,

2009 Tex. App. LEXIS 8221, at **11-12. An abuse of discretion occurs when the trial

court acts arbitrarily or unreasonably without reference to any guiding rules or

principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc).

Unless the trial court’s decision was outside the “zone of reasonable disagreement,” an

appellate court should uphold the ruling. Oprean v. State, 201 S.W.3d 724, 726 (Tex.

Crim. App. 2006).

B. Applicable Law

       A motion to suppress is a specialized objection to the admissibility of evidence.

See Johnson v. State, 171 S.W.3d 643, 647 (Tex. App.—Houston [14th Dist.] 2005, pet.

ref’d). Thus, a motion to suppress must meet all of the requirements of an objection;

that is, it must be timely and sufficiently specific to inform the trial court of the

complaint, unless the specific grounds are apparent from the context. Porath v. State,

148 S.W.3d 402, 413 (Tex. App.—Houston [14th Dist.] 2004, no pet.); see TEX. R. APP. P.

33.1(a). This Court has stated the following regarding the application of rule 33.1’s

preservation requirements:

       “The standards of procedural default, therefore, are not to be
       implemented by splitting hairs in the appellate courts. As regards
       specificity, all a party has to do to avoid the forfeiture of a complaint on
       appeal is to let the trial judge know what he wants, why he thinks himself
       entitled to it, and to do so clearly enough for the judge to understand him
       at a time when the trial court is in a proper position to do something about
       it.”

State v. Hanrahan                                                                     Page 6
Lewis v. State, 191 S.W.3d 335, 338 (Tex. App.—Waco 2006, pet. ref’d) (quoting Lankston

v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).

C. Discussion

       In her motion to suppress, appellee noted that she was charged with the offense

of driving while intoxicated and alleged that:       (1) the actions of the Mexia Police

Department violated her rights under the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution, article I, section 9 of the Texas

Constitution, and article 38.23 of the code of criminal procedure; (2) she was arrested

without lawful warrant, probable cause, or other lawful authority in violation of several

provisions of the United States and Texas Constitutions; and (3) any statements or

evidence obtained from her violated article 38.22 of the code of criminal procedure and

various provisions of the United States and Texas Constitutions.          See U.S. CONST.

amends. IV, V, VI, XIV; TEX. CONST. art. I, § 9; TEX. CODE CRIM. PROC. ANN. arts. 38.22,

38.23 (West 2005). Based on our reading of appellee’s motion to suppress, we find that

it contained sufficient specificity to inform the trial court of her complaints. Moreover,

at the suppression hearing, the State neither claimed surprise nor moved to continue the

case on the basis of surprise or the alleged lack of specificity contained in the motion. In

addition, when the State moved to dismiss appellee’s suppression motion for lack of

specificity at the beginning of the hearing, appellee’s trial counsel stated that “the basis

for the Motion to Suppress is that there was no reasonable suspicion or probable cause

to stop Ms. Hanrahan, the defendant, in this case in the first place.” We believe this


State v. Hanrahan                                                                     Page 7
explanation comports with the written language contained in appellee’s motion to

suppress. Furthermore, there is no indication in the record that the trial court did not

understand what appellee wanted and why she felt entitled to the relief requested. See

Lankston, 827 S.W.2d at 909; Lewis, 191 S.W.3d at 338; see also TEX. R. APP. P. 33.1(a). As

such, we conclude that the State has failed to demonstrate that the trial court abused its

discretion in conducting a hearing on appellee’s motion to suppress. See Calloway, 743

S.W.2d at 649; Morrison, 71 S.W.3d at 825-26; Reed, 888 S.W.2d at 119; Cox, 843 S.W.2d at

752; see also Montoy, 2009 Tex. App. LEXIS 8221, at **11-12. We overrule the State’s first

issue.

            III.    THE TRIAL COURT’S RULING ON APPELLEE’S MOTION TO SUPPRESS

         In its second and third issues, the State contends that the trial court abused its

discretion in granting appellee’s motion to suppress. Specifically, the State asserts that

the trial court erred in concluding that the arresting officer lacked reasonable suspicion

to stop appellee, especially considering the totality of the circumstances.

A. Standard of Review

         We review the trial court’s ruling on a motion to suppress evidence for an abuse

of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex.

Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We

give “almost total deference” to the trial court’s findings of historical fact that are

supported by the record and to mixed questions of law and fact that turn on an

evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo

the trial court’s determination of the law and its application of law to facts that do not

State v. Hanrahan                                                                    Page 8
turn upon an evaluation of credibility and demeanor. Id. When the trial court has not

made a finding on a relevant fact, we imply the finding that supports the trial court’s

ruling, so long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-

19 (Tex. Crim. App. 2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007).

We will uphold the trial court’s ruling if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006).

       When a trial judge makes explicit fact findings regarding a motion to suppress,

an “appellate court [must first] determine whether the evidence (viewed in the light

most favorable to the trial court’s ruling) supports these fact findings.”       Kelly, 204

S.W.3d at 818. “The appellate court then reviews the trial court’s legal ruling[s] de novo

unless the trial court’s supported-by-the-record explicit fact findings are also dispositive

of the legal ruling.” Id.

B. Applicable Law

       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); see State v. Dietiker, 345 S.W.3d 422, 424 (Tex. App.—Waco

2011, no pet.). The defendant’s burden may be satisfied by establishing that a search or

seizure occurred without a warrant. Ford, 158 S.W.3d at 492; see Dietiker, 345 S.W.3d at

424. After this showing is made by the defendant, the State assumes the burden of

demonstrating that the search or seizure was conducted pursuant to a warrant or was

State v. Hanrahan                                                                     Page 9
reasonable. Ford, 158 S.W.3d at 492; see Dietiker, 345 S.W.3d at 424. 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.

        A determination of reasonable suspicion is made by considering the totality of

the circumstances. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). In Foster

v. State, the court of criminal appeals repeated the standard for warrantless traffic stops:

        A law enforcement officer may stop and briefly detain a person for
        investigative purposes on less information than is constitutionally
        required for probable cause to arrest. In order to stop or briefly detain an
        individual, an officer must be able to articulate something more than an
        inchoate and unparticularized suspicion or hunch. Specifically, the police
        officer must have some minimal level of objective justification for making
        the stop, i.e., when the officer can point to specific and articulable facts
        which, taken together with rational inferences from those facts, reasonably
        warrant [the] intrusion. The reasonableness of a temporary detention
        must be examined in terms of the totality of the circumstances.

326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (internal quotations omitted).

        Section 545.058(a) of the transportation code provides the following, in pertinent

part:

        (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;


State v. Hanrahan                                                                      Page 10
           (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).

C. Discussion

       Here, Officer Bell testified that, based on his observation of the front passenger

tires of appellee’s vehicle crossing the “fog line,” appellee only violated section

545.058(a) of the transportation code that night. See id.; see also Dietiker, 345 S.W.3d at

425 (“It is the State’s choice to determine which traffic violation it relies upon in

establishing reasonable suspicion for a traffic stop.”). However, on cross-examination,

Officer Bell was unable to clearly explain to what degree appellee crossed the “fog line.”

Furthermore, the video from the camera installed in Officer Bell’s patrol car that

captured the incident was admitted into evidence and failed to clearly show a violation

of section 545.058(a) of the transportation code.         See TEX. TRANSP. CODE ANN. §

545.058(a).   While in some instances an officer’s observation of a violation of the

transportation code unequivocally establishes a violation of the law justifying a traffic

stop, see Hicks v. State, 255 S.W.3d 351, 354 (Tex. App.—Texarkana 2008, no pet.), in this

case, the trial court was able to not only consider the testimony of Officer Bell, but it

also was able to consider the video recording of the incident.             And in granting

appellee’s motion to suppress, the trial court clearly did not believe the testimony of

Officer Bell, and it did not believe that the videotape conclusively demonstrated a

violation of the transportation code. Essentially, the determination of whether Officer

State v. Hanrahan                                                                   Page 11
Bell had reasonable suspicion to stop appellee turned on the trial court’s evaluation of

Officer Bell’s credibility and an evaluation of the video recording within the context of

Officer Bell’s testimony. See Guzman, 955 S.W.2d at 89. In such instances, we afford

“almost total deference” to the trial court’s conclusions. See id. Furthermore, because

the trial court entered fact findings stating that it did not believe that a traffic violation

occurred, we must review the fact findings in a light most favorable to the trial court’s

ruling. See Kelly, 204 S.W.3d at 818.

        In addition, we disagree with the State’s contention that the trial court failed to

consider the totality of the circumstances when it concluded that Officer Bell did not

have reasonable suspicion to stop appellee. Although neither the judgment nor the trial

court’s findings of fact explicitly reference a consideration of the totality of the

circumstances, we can imply that the trial court considered such circumstances given

that: (1) Officer Bell testified that he observed appellee’s alleged traffic violation at

approximately 1:00 a.m.—a time of night which, based on Officer Bell’s four years of

experience, is common for driving-while-intoxicated offenses to occur—and that

appellee was leaving an area where many bars and restaurants are located; and (2) the

trial court, after considering Officer Bell’s testimony and the video recording,

determined that appellee’s vehicle “did not travel on the improved shoulder of the

highway prior to the stop by the police” and, thus, no traffic violation occurred. See

Moran, 213 S.W.3d at 922; Kelly, 204 S.W.3d at 818-19; see also Cain v. State, 958 S.W.2d

404, 409 (Tex. Crim. App. 1997) (“The courts of appeals are not at liberty to engage in

fact-finding . . . .”).

State v. Hanrahan                                                                      Page 12
       Therefore, applying the governing standards of review, we cannot say that the

State has presented sufficient evidence to demonstrate that the trial court abused its

discretion in granting appellee’s motion to suppress.    See Crain, 315 S.W.3d at 48;

Guzman, 955 S.W.2d at 88-89. Accordingly, the State’s second and third issues are

overruled.

                                   IV.   CONCLUSION

       Having overruled all of the State’s issues on appeal, we affirm the judgment of

the trial court.



                                                AL SCOGGINS
                                                Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 15, 2012
[CR25]




State v. Hanrahan                                                              Page 13
