                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00418-CR


BRANDON KURTIS JEWELL                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                        STATE


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          FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY
                    TRIAL COURT NO. CCL2-12-0334

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                        MEMORANDUM OPINION1

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      Appellant Brandon Kurtis Jewell appeals from the trial court’s denial of his

motion to suppress. We affirm.

                              Background Facts

      On February 26, 2012, at approximately 2:30 a.m., Trooper Jacob Smith

was driving on Interstate 20 in Parker County, Texas. Behind him, he saw a car


      1
      See Tex. R. App. P. 47.4.
driven by Appellant that had blue headlights that “were probably bluer than the

lights on [his] emergency lights.” Smith believed that the lights were nonstandard

and in violation of federal and state law. After allowing the car to pass, Smith

observed the vehicle weave over the “fog line” separating the highway from the

improved shoulder at least twice.2

      Smith stopped Appellant based on the traffic violations that he observed

and because he thought the driver might be sleepy or intoxicated. Appellant had

bloodshot, glassy eyes and smelled of alcohol. Appellant admitted to drinking

two or three beers that night, although Smith believed Appellant had drunk more

than that. Smith administered four field sobriety tests, determined that Appellant

was intoxicated, and arrested him.

      During a jury trial, Smith testified that he pulled Appellant’s car over and

approached the vehicle. Appellant objected to any further testimony from Smith

on the ground that there was no probable cause or reasonable suspicion to pull

him over. The trial court overruled the objection. A jury found Appellant guilty of

driving while intoxicated (DWI), and the trial court sentenced Appellant to 180




      2
        The recording made by the patrol car camera during the traffic stop was
admitted into evidence as State’s Exhibit 1. This court has reviewed that
recording and confirmed that Appellant drove on the improved shoulder to the
right of the main traveled portion of the roadway. See Tex. Transp. Code Ann.
§ 545.058 (West 2011).


                                        2
days jail time probated for 24 months, an $800 fine, court costs, community

service, and completion of Alcohol Education and Victim Impact programs.3

      Appellant filed a notice of appeal and now contends in his sole issue that

the trial court erred in denying his oral motion to suppress because there was no

reasonable suspicion to stop him.

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

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      Stated another way, 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 v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State

v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).     When,    as   here,   the

record is silent on the reasons for the trial court’s ruling, or when there are no

      3
      The punishment assessed was agreed to by the State, Appellant, and his
counsel.


                                         3
explicit fact findings and neither party timely requested findings and conclusions

from the trial court, we imply the necessary fact findings that would support the

trial court’s ruling if the evidence, viewed in the light most favorable to the trial

court’s ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236,

241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then review the

trial court’s legal ruling de novo unless the implied fact findings supported by the

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

                                    Discussion

      In his sole issue, Appellant argues that reasonable suspicion could not be

based on Smith’s observances of (1) his “fail[ing] to maintain a single lane of

traffic” and (2) his “bluer than normal headlights.”

      A detention may be justified on less than probable cause if a person is

reasonably suspected of criminal activity based on specific, articulable facts.

Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche v. State,

10 S.W.3d 323, 328 (Tex. Crim. App. 2000).             An officer conducts a lawful

temporary detention when he or she has reasonable suspicion to believe that an

individual is violating the law. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App.

2010); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable

suspicion exists when, based on the totality of the circumstances, 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 is, has

been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This


                                          4
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. Id.

      Appellant argues that the State was required to establish the elements of a

traffic violation in order for the trial court to find that valid reasonable suspicion

existed to justify the stop. Specifically, Appellant argues that Smith’s testimony

could not support reasonable suspicion that he had violated section 545.060(a)

of the transportation code because the State did not prove that Appellant

unsafely moved out of his lane of traffic.         See Tex. Transp. Code Ann.

§ 545.060(a) (West 2011) (stating that a driver may not move from his lane

unless the movement can be made safely); Fowler v. State, 266 S.W.3d 498,

503–04 (Tex. App.—Fort Worth 2008, pet. ref’d). Appellant’s argument, and the

cases cited in support thereof, all regard a stop made based on section

545.060(a). The officer in the instant case never testified that he was relying

upon section 545.060(a) as a basis for his stop; he testified that he witnessed

Appellant driving on the improved shoulder, which is a violation of section

545.058.4 Smith testified,

      4
      Texas Transportation Code section 545.058(a), entitled “Driving on
Improved Shoulder,” provides,

           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;


                                             5
             Q. Okay. Was the driving that you saw a violation of Texas
      law in itself?

            A. Only when you drive over the shoulder. You can weave
      around it in your lane, you just can’t cross the lines unless you use
      your turn signal or you’re driving on the shoulder.

           Q. This Texas law specified certain given situations where a
      person can drive on a shoulder?

                 A. Yes, sir.

             Q. And did you see any of those circumstances that existed at
      that time?

                 A. No, sir.

                 Q. So you decided to pull the person over?

                 A. Yes, sir.

In the hearing outside the presence of the jury, the State argued that the stop

was legal for multiple reasons, none of which was a violation of section


                 (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).


                                             6
545.060(a). The State said, “The officer also testified that this vehicle was driven

on the shoulder. And it clearly stated that was a violation of the law unless

certain circumstances existed, which he stated did not.”

      Unlike section 545.060, section 545.058(a) prohibits a driver from driving

on an improved shoulder when doing so is not a necessary part of achieving one

of the seven approved purposes, even when driving on the shoulder may be

done safely. See State v. Munsey, 424 S.W.3d 767, 773 (Tex. App.—Fort Worth

2014, no pet.); Thomas v. State, 420 S.W.3d 195, 200 (Tex. App.—Amarillo

2013, no pet.) (holding that the traffic offense of driving on the improved shoulder

supports an initial detention of a driver); State v. Lockhart, No. 07-04-00304-CR,

2005 WL 1838457, at *3 (Tex. App.—Amarillo Aug. 2, 2005, no pet.) (not

designated for publication) (same); Tyler v. State, 161 S.W.3d 745, 748–49 (Tex.

App.—Fort Worth 2005, no pet.) (holding that traveling on the shoulder was

independently sufficient to provide probable cause to stop the driver). Nothing in

this record shows that Appellant’s driving on the improved shoulder was

necessary to achieve one of the seven approved purposes, even if he was

driving safely on the shoulder.        See Munsey, 424 S.W.3d at 773.         Smith

articulated specific facts that support reasonable suspicion that Appellant violated

section 545.058(a) and, therefore, the trial court did not err by denying

Appellant’s oral motion to suppress.




                                          7
      Furthermore, the testimony establishes reasonable suspicion of driving

while intoxicated. The court of criminal appeals has explained the standard for

warrantless traffic stops thusly:

             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. Terry, 392 U.S. at 21. 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.’” Id. 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.” Id. The reasonableness of a temporary
      detention must be examined in terms of the totality of the
      circumstances.

             ....

             . . . [T]ime of day is a relevant factor in determining
      reasonable suspicion. . . . Similarly, . . . location near a bar district
      where police have made numerous DWI arrests is also a relevant
      factor in determining reasonable suspicion.

Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (some citations

omitted). Thus, an officer may stop a driver based on a reasonable suspicion of

DWI even when the driver has not violated a traffic law and has not endangered

other drivers. See James v. State, 102 S.W.3d 162, 171–72 (Tex. App.—Fort

Worth 2003, pet. ref’d) (distinguishing stops made based “only upon observation

of a traffic offense” from those in which the officer believes a driver might be

impaired, such as by intoxication); Cook v. State, 63 S.W.3d 924, 929 (Tex.

App.—Houston [14th Dist.] 2002, pet. ref’d).




                                         8
      Smith testified that he decided to stop Appellant’s vehicle after he saw

Appellant repeatedly drive over the fog line because he “thought possibly this

person was pretty sleepy and needed to be woke[n] up or may be intoxicated.”

He testified that he witnessed Appellant’s driving around 2:30 in the morning. He

also stated that it was illegal to cross lane lines without using a turn signal or to

drive on the shoulder unless under specific circumstances, none of which were

present at the time of the stop.

      These facts, given the totality of the circumstances and viewed in the light

most favorable to the trial court’s ruling, support the trial court’s conclusion that

Smith had reasonable suspicion to stop Appellant.        See Curtis v. State, 238

S.W.3d 376, 381 (Tex. Crim. App. 2007) (holding that a rational inference from

observing a car “weaving in and out of his lane several times, over a short

distance, late at night” was that the driver was intoxicated and that such

circumstances justified an investigative stop); Dunkelberg v. State, 276 S.W.3d

503, 506–07 (Tex. App.—Fort Worth 2008, pet. ref’d) (holding that stop based on

suspicion of DWI was reasonable based on “the manner in which the vehicle was

operated in conjunction with the time of night”); James, 102 S.W.3d at 172

(“Erratic or unsafe driving may furnish a sufficient basis for a reasonable

suspicion that the driver is intoxicated even absent evidence of violation of a

specific traffic law.”); McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.—Fort

Worth 2001, pet. ref’d) (holding that officer’s suspicion that driver was falling

asleep or intoxicated was reasonable based on observations of driver driving


                                         9
slowly and twice crossing the lane stripe even “assuming Officer Beauchamp’s

testimony may not have established a reasonable suspicion that appellant had

violated a traffic law”).   We therefore hold that the trial court did not err by

denying Appellant’s oral motion to suppress. We overrule Appellant’s sole issue.

                                    Conclusion

      Having overruled Appellant’s sole issue, we affirm the trial court’s

judgment.



                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 10, 2014




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