Affirmed and Opinion filed November 8, 2016.




                                       In The

                      Fourteenth Court of Appeals

                               NO. 14-15-00822-CR

                       THE STATE OF TEXAS, Appellant
                                          V.
                     ALBERT TYRONE BERNARD, Appellee

                       On Appeal from County Court No. 3
                            Galveston County, Texas
                       Trial Court Cause No. MD-348570

                                  OPINION


      The State of Texas appeals from a pre-trial order granting Albert Tyrone
Bernard’s motion to suppress the warrantless stop and blood alcohol test results in
a prosecution for misdemeanor driving while intoxicated.1 For the reasons that
follow, we affirm.


      1
         The State may appeal an order in a criminal case granting a motion to suppress
evidence. Tex. Code Crim. Proc. art. 44.01(a)(5).
                FACTUAL AND PROCEDURAL BACKGROUND

        On August 20, 2014, at approximately 2:30 a.m., Deputy Tracy Watson was
traveling southbound on Highway 146, south of the City of Kemah, in Galveston
County. Watson observed a vehicle, driven by Bernard, about a quarter of a mile
in front of her and “swerving from lane to lane and even going into the center
lane.” Watson activated her emergency lights and pulled the vehicle over.2

        Watson testified that Bernard was driving his vehicle at the correct speed, all
equipment was functioning properly on the vehicle, the registration and insurance
were valid, and he stopped his vehicle normally when he was pulled over. Watson
further testified that Bernard’s driving did not interfere with any other vehicles and
there was nothing unsafe about his driving.

        After stopping Bernard, Watson requested that Bernard pull his vehicle into
a parking lot out of traffic. Bernard complied without incident. In response to
Watson’s queries, Bernard told her he had two shots of tequila prior to leaving
work.

        Deputy Jacob T. Manuel arrived at the scene to assist Watson.                   After
speaking with Watson, Manuel approached Bernard. Manuel testified that Bernard
admitting to consuming alcoholic beverages that evening and Bernard’s eyes were
glassy. Manuel further testified that he did not smell the odor of alcohol on or
about Bernard; instead, he smelled cologne, which Manuel described as a “cover-
up” odor to mask the smell of alcohol. Manuel did not suspect any type of drug
impairment and did not observe any type of open container of alcohol in the
vehicle.
        2
         Watson testified that the in-car video system on the dashboard of her vehicle will
automatically back up and show the events occurring for two minutes prior to when she activates
her overhead emergency lights. The video taken from Watson’s dash camera in this case was
admitted as State’s Exhibit 1.

                                              2
       Manuel asked Bernard to step out of the car; he initially was uncooperative.
Eventually, Bernard got out of the car but refused to participate in field sobriety
tests. Manuel placed Bernard under arrest for driving while intoxicated and took
him into custody.

       Manuel asked Bernard if he would provide a specimen of his breath or blood
for analysis, and he refused. Manuel prepared an affidavit for a search warrant to
take Bernard’s blood. The search warrant was issued about an hour and fifteen
minutes after Manuel came in contact with Bernard.

                                      Motion to Suppress

       Bernard was charged with the offense of misdemeanor driving while
intoxicated. Bernard filed a pre-trial motion to suppress, arguing that he was
stopped and subsequently arrested without a warrant and without probable cause in
violation of the U.S. Constitution and the laws and constitution of the State of
Texas. He further asserted that the traffic stop and blood alcohol test results should
be suppressed because each were in violation of his constitutional rights.

       At the hearing on Bernard’s motion, the State stipulated Bernard was
arrested without a warrant. Additionally, the trial court took judicial notice of
Section 545.060 of the Texas Transportation Code at Bernard’s request.3 The trial
court heard testimony from Watson and Manuel. Additionally, the trial court
accepted into evidence two exhibits from the State – a video from the dash camera


       3
          Texas Transportation Code Section 545.060(a), entitled, “Driving on Roadway Laned
for Traffic,” provides in pertinent part:
(a)    An operator on a roadway divided into two or more clearly marked lanes for traffic:
(1)    shall drive as nearly 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 § 545.060(a).

                                                 3
of Watson’s police car and Manuel’s affidavit for a search warrant to take
Bernard’s blood. The trial court granted Bernard’s motion to suppress.

                   The Trial Court’s Findings and Conclusions

      The trial court entered findings of fact and conclusions of law regarding its
order granting Bernard’s motion to suppress the warrantless stop and blood alcohol
test results.   Of the twenty-six findings of fact made by the trial court, the
following are most pertinent to this appeal:

    Watson followed Bernard for approximately one minute to one minute-and-
     one-half before activating her emergency lights and initiating a warrantless
     traffic stop on Bernard;
    Watson’s dash cam video began recording approximately two minutes prior
     to her activating her emergency lights;
    Bernard properly and without incident initiated his right turn signal, changed
     lanes into the right lane, and pulled onto the shoulder of the roadway upon
     seeing Watson’s flashing emergency lights;
    Watson requested Bernard to pull across Highway 146 into the parking lot of
     a nearby local business, the Family Dollar. He complied and drove his
     vehicle across Highway 146, without incident, into the Family Dollar
     parking lot;
    Watson testified Bernard’s vehicle went outside his lane of travel twice and
     that his vehicle’s tires did not cross the line very far, but about 3 feet or less;
    Watson testified there was nothing unsafe about Albert Bernard’s driving;
    There was no other traffic around Bernard while he was maintaining or
     failing to maintain a single lane;
    There was no smell or odor of alcohol on Bernard but only an odor of
     cologne;
    Manuel testified Bernard had fair yet slow and deliberate speech,
     uncooperative attitude, and refused to participate in Standardized Field
     Sobriety Tests;
    Manuel viewed the dash cam video and testified that Bernard’s vehicle only
     crossed 6-to-8 inches over the lane divider at one point, and approximately 4

                                           4
       inches at another point. He further testified that in viewing the dash cam
       video that it appeared to him that Bernard was mostly just “drifting” from
       side to side within his own lane; and
    Manuel testified Bernard’s vehicle did not interfere with any other traffic,
     and that his driving was not unsafe.


       The trial court also made the following relevant conclusions of law:

    Watson stopped Bernard without reasonable suspicion of driving while
     intoxicated. Bernard was not driving in an unsafe manner to any other
     vehicles on the road, and no reasonable suspicion of a traffic offense under
     Texas Transportation Code 545.060 existed at the time he was stopped.
     Bernard’s driving was not unsafe to himself or others as evidenced by the
     testimony of both Watson and Manuel;
    The affidavit supporting the search warrant for blood alcohol test in this case
     is inconsistent with the requirements under the law since it fails to provide a
     substantial basis to conclude that probable cause existed; and
    The affidavit of Manuel for a search warrant does not provide a substantial
     basis to conclude that probable cause existed to take Albert Bernard’s blood.


       In accordance with the requirements of 44.01(a)(5) of the Texas Code of
Criminal Procedure, the State certified in its notice of appeal that “the present
appeal is not taken for the purpose of delay and the evidence is of substantial
importance.”4




       4
          See State v. Chupik, 343 S.W.3d 144, 145-46 (Tex. Crim. App. 2011) (“Under Article
44.01(a)(5) of the Code of Criminal Procedure, the State is entitled to appeal an order of a court
in a criminal case if the order ‘grants a motion to suppress evidence, a confession, or an
admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the
trial court that the appeal is not taken for the purpose of delay and that the evidence, confession,
or admission is of substantial importance in the case.’”) (emphasis added).

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                                           ANALYSIS

I.       Standard of Review

         When reviewing a trial court’s ruling on a motion to suppress, we give
almost total deference to the court’s determination of the historical facts that the
record supports, especially when those fact findings are based on an evaluation of
the witnesses’ credibility and demeanor.5 Leming v. State, 493 S.W.3d 552, 562
(Tex. Crim. App. 2016); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). We accord the same level of deference to the trial court’s rulings on mixed
questions of law and fact if those decisions turn on the credibility and demeanor of
the witnesses. Id. We review de novo mixed questions of law and fact that do not
turn on witness credibility. Id.                 Despite its fact-sensitive analysis, the
“reasonableness” of a specific search or seizure under the Fourth Amendment is
subject to de novo review. Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App.
2004).

         Where, as here, the trial judge makes express findings of fact, we must first
determine whether the evidence, when viewed in the light most favorable to the
trial court’s ruling, supports those findings. Valtierra v. State, 310 S.W.3d 442,
447 (Tex. Crim. App. 2010). We uphold the trial court’s ruling if it is supported
by the record and correct under any theory of law applicable to the case. State v.
Iduarte, 268 S.W.3d 544, 548–49 (Tex. Crim. App. 2008). Thus, if supported by
the record, a trial court’s ruling on a motion to suppress will not be overturned.
Mount v. State, 217 S.W.3d 716, 724 (Tex. App.—Houston [14th Dist.] 2007, no
pet.).


         5
         At a suppression hearing, the trial court is the sole finder of fact and is free to believe or
disbelieve any or all of the evidence presented. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007).

                                                  6
II.    No abuse of discretion in suppressing warrantless stop

       In its first issue, the State argues that the trial court erred in granting
Bernard’s motion to suppress his arrest, maintaining there was reasonable
suspicion that Bernard violated the traffic offense of failure to maintain a single
lane under Section 545.060(a) of the Texas Transportation Code.

       A warrantless automobile stop is a Fourth Amendment seizure analogous to
a temporary detention, and it must be justified by reasonable suspicion. Berkemer
v. McCarty, 468 U.S. 420, 439 (1984); see Derichsweiler v. State, 348 S.W.3d 906,
914 (Tex. Crim. App. 2011). The reasonableness of a temporary detention is
determined from the totality of the circumstances. Leming, 493 S.W.3d at 562;
Zuniga–Hernandez v. State, 473 S.W.3d 845, 848 (Tex. App.—Houston [14th
Dist.] 2015, no pet.). If an officer has a reasonable basis for suspecting a person
has committed a traffic offense, then the officer legally may initiate a traffic stop.
Id. Reasonable suspicion is present if the officer has “specific, articulable facts
that, combined with rational inferences from those facts, would lead [the officer]
reasonably to conclude that the person . . . is, has been, or soon will be engaged in
criminal activity.” Derichsweiler, 348 S.W.3d at 914; Zuniga–Hernandez, 473
S.W.3d at 848. “An officer’s stated purpose for a stop can neither validate an
illegal stop nor invalidate a legal stop because the stop’s legality rests on the
totality of the circumstances, viewed objectively.” Id.

       Watson testified that she stopped Bernard because she observed him failing
to maintain a single lane of traffic and wanted to do a “welfare check.”6 The trial
court suppressed the warrantless stop, finding no reasonable suspicion of a traffic
violation existed under Tex. Transp. Code Ann. § 545.060 and citing in its

       6
        Despite this testimony, the State did not pursue a “community caretaking function”
argument at trial or on appeal. The trial judge made no finding as to community caretaking.

                                            7
conclusions of law an Austin appellate court’s holding in Hernandez v. State, 983
S.W.2d 867, 870 (Tex. App.—Austin 1998, pet. ref’d), to support its ruling. In
Hernandez, the court upheld the suppression, finding that the State did not meet its
burden of proving the warrantless stop of the accused was reasonable because the
State failed to prove both prongs of Section 545.060; (1) failing to drive as nearly
as practical entirely within a single lane and (2) moving from the lane when not
safe to do so. See 983 S.W.2d at 871; Atkinson v. State, 848 S.W.2d 813, 815 (Tex.
App.—Houston [14th Dist.] 1993, no pet.) (interpreting predecessor statute); see
also Eichler v. State, 117 S.W.3d 897, 900–01 (Tex. App.—Houston [14th Dist.]
2003, no pet.) (interpreting Section 545.060 in accordance with Atkinson and
Hernandez). The State agreed that Hernandez applied, but argued that the evidence
satisfied both prongs.

      After briefing was completed in this case, a plurality of the court of criminal
appeals rejected the Atkinson/Hernandez analysis, interpreting Section 545.060 of
the Texas Transportation Code as creating two separately actionable offenses.
Leming v. State, 493 S.W.3d 552, 559 (Tex. Crim. App. 2016). In Leming, the
four-judge plurality 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, however, do not constitute binding authority.
Vasquez v. State, 389 S.W.3d 361, 370 (Tex. Crim. App. 2012) (plurality opinion
has no binding precedential value). Absent a decision from a higher court or this
court sitting en banc that is on point and contrary to the prior panel decision or an
intervening and material change in the statutory law, this court is bound by the
prior holding of another panel of this court. Medina v. State, 411 S.W.3d 15, 20
                                          8
n.5 (Tex. App.—Houston [14th Dist.] 2013, no pet.).           Accordingly, Eichler
controls. See 117 S.W.3d at 900–01.

       Based on the dash cam video and the testimony of the officers, the trial court
found no violation of the Transportation Code.        Just as in Eichler, the State
presented no evidence that appellant’s failure to stay in a single marked lane was
unsafe. Eichler, 117 S.W.3d at 901. Watson’s dash cam video does not contradict
this finding. See State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013)
(appellate court may review de novo indisputable visual evidence contained in a
videotape). We overrule the State’s first issue.

III.   No abuse of discretion in suppressing results of blood draw

       The State next argues that the trial court erred by suppressing the results of
the blood alcohol test, asserting that Manuel included sufficient information within
the search warrant affidavit for a magistrate judge to conclude there was probable
cause and, thus, issue a search warrant for the taking of Bernard’s blood.

       As set forth above, Watson’s stop of Bernard was unlawful. Because any
statements made to or observations by Manuel were derived from Watson’s illegal
detention, the affidavit prepared by Manuel could not provide probable cause for
searching Manuel’s blood. A search warrant may not be procured lawfully by the
use of illegally obtained information. McClintock v. State, 480 S.W.3d 734, 742
(Tex. App.—Houston [1st Dist.] 2015, pet. granted). Evidence which is obtained
as the result of an illegal arrest may be suppressed by a defendant. Johnson v.
State, 878 S.W.2d 164, 168 (Tex. Crim. App. 1994); see also Wong Sun v. United
States, 371 U.S. 471, 487–88 (1963); Iduarte, 268 S.W.3d at 550; Overshown v.
State, 329 S.W.3d 201, 204 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Tex.




                                          9
Crim. Proc. Code Ann. art. 38.23(b).7 Accordingly, the State has failed to
demonstrate the trial court erred in granting the motion to suppress. See Wade v.
State, 422 S.W.3d 661, 676 (Tex. Crim. App. 2013); State v. Mazuca, 375 S.W.3d
294, 306 (Tex. Crim. App. 2012); Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim.
App. 1992); Smith v. State, 58 S.W.3d 784, 793–94 (Tex. App.—Houston [14th
Dist.] 2001, pet. ref’d).

       We overrule the State’s second issue.

                                        CONCLUSION

       We affirm the ruling of the trial court.




                                              /s/       Martha Hill Jamison
                                                        Justice



Panel consists of Justices Jamison, Donovan, and Brown.
Publish — Tex. R. App. P. 47.2(b).




       7
           Tex. Code Crim. Proc. art. 38.23 provides:
       (a) No evidence obtained by an officer or other person in violation of any provisions of
the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States
of America, shall be admitted in evidence against the accused on the trial of any criminal case....
       (b) It is an exception to the provisions of subsection (a) of this Article that the evidence
was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant
issued by a neutral magistrate based on probable cause.

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