                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                  NO. 2-09-126-CR

BONNIE MILLER REED                                                       APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE

                                      ------------

      FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY

                                      ------------

                                     OPINION

                                      ------------

                                   I. Introduction

      Appellant Bonnie Miller Reed challenges the trial court’s denial of her motion

to suppress in a driving while intoxicated (DW I) case. In one issue, Reed argues

that the trial court erred by finding reasonable suspicion existed for her detention on

suspected DW I. W e affirm.
                     II. Factual and Procedural Background

      Bedford Police Officer Chris Miller was the only witness at Reed’s suppression

hearing. 1 In addition to testifying that he had been a police officer for three years

and had attended specialized training for field sobriety tests, he also testified to the

following.

      W hile out on routine patrol around 12:45 a.m. on February 12, 2008, he had

seen a vehicle driving eastbound on State Highway 183 veer onto the shoulder of

the roadway.2 W hen asked to describe how far the vehicle had crossed over onto

the shoulder, Officer Miller stated, “[I]f you divide the vehicle down the middle, I

would say the right-hand, or the passenger compartment, was off of the roadway on

the shoulder. The driver’s side, or the left side, was still in the roadway.” Officer

Miller activated his in-car video camera at that time and proceeded to follow the

vehicle. He observed the driver, later identified as Reed, turn on her right-hand turn

signal when there were no exits or roads to turn onto and leave the signal on for

approximately one-quarter to one-half mile before moving into the exit lane. Officer

Miller again saw Reed’s vehicle veer onto the shoulder of the roadway before it

exited. Officer Miller stated and the videotape confirmed that when Reed’s vehicle


      1
         The State also introduced the videotape of the stop made from the camera
in Officer Miller’s patrol unit.
      2
        Officer Miller testified that the vehicle was driving westbound. A review of
the videotape, however, shows that the vehicle was actually traveling eastbound.
Because this is irrelevant to the issue at hand, we note it simply for the sake of
accuracy.

                                           2
veered onto the shoulder the second time, “[t]he passenger tires [were] clearly over

the line.”

       Officer Miller testified that although he had not seen Reed entering or leaving

a bar, she had been driving away from an area of Bedford that contained several

bars and restaurants that served alcohol, and that he had previously pulled over

other drivers for DW I in that same area. W hen asked about Reed’s driving and the

surrounding conditions, Officer Miller stated that Reed’s movements had not been

jerky or violent but had been more like a gradual drift, that the traffic on the roadway

had been light, and that Reed had not posed an immediate danger to any other

vehicles. Officer Miller also stated that, based on his experience and training,

intoxicated drivers sometimes drift.

       Finally, Officer Miller testified that in addition to the probable cause from the

traffic violations—that is, failure to maintain a single lane and illegal use of a turn

signal—he had stopped Reed because he suspected that she might be intoxicated

based on her driving, the time of day, the area of the city that she had been coming

from, and his experience with intoxicated drivers exhibiting similar driving

characteristics.

       After hearing all the evidence, the trial court denied Reed’s motion to

suppress, and on March 18, 2009, it entered findings of fact and conclusions of law.

The trial court’s findings were:




                                           3
      The [trial court] finds there was no traffic violation under Section
      545.060(a) [of the] Transportation Code. There is no evidence that the
      Defendant’s failure to drive in a single lane was unsafe. The use of the
      turn signal was not done in an illegal manner. There was no probable
      cause for the stop. This leaves the question of whether there was
      reasonable suspicion to justify the stop.

      The reasons against the unlawfulness of the detention in this case are:

             1.   No traffic violation.
             2.   Not weaving within the lane.
             3.   Nothing unsafe about weaving on to the shoulder.
             4.   Very light traffic.
             5.   No erratic speed changes.
             6.   Driving within the speed limit.

      The reasons for the lawful detention in this case are:

             1. Crossing on to the shoulder of the roadway by one-half
             width of the vehicle.
             2. Crossing on to the shoulder a second time by a few
             inches.
             3. Unusual use of turn signal. Turn[ed] on when not
             approaching an exit and kept on for an unusual length of
             time for approximately one-half mile.
             4. Leaving the bar area of the city at approximately 12:45
             a.m.
             5. Based on the Officer’s training and experience,
             intoxicated drivers show these characteristics of driving.
             6. Based on his training and experience, the officer
             suspected the driver might be intoxicated.

      The trial court concluded that “the articulated facts justifying the stop were

sufficient to overcome the articulated facts mitigating against the stop and were

sufficient to give Officer Miller a reasonable suspicion to detain [Reed] for further

investigation.” Thus, Reed’s “Fourth Amendment rights under the United States




                                         4
Constitution and under Article 1[,] Section 9 of the Texas Constitution were not

violated.”

      Reed subsequently pleaded guilty to the offense of DW I but preserved her

right to appeal the denial of the motion to suppress. The trial court sentenced Reed

to fifteen days’ confinement and assessed a $500 fine. This appeal followed.

                                   III. Discussion

      In her sole issue, Reed argues that the trial court erred by concluding that

Officer Miller had reasonable suspicion, under both the United States and Texas

constitutions, to stop her for suspected DW I. 3

A. Standard of Review

      W e 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



      3
         W hen, as in this case, the appellant has not separately briefed state and
federal constitutional claims, we assume that the appellant claims no greater
protection under the state constitution than that provided by the federal constitution.
See Varnes v. State, 63 S.W .3d 824, 829 (Tex. App.—Houston [14th Dist.] 2001, no
pet.). Therefore, we will analyze Reed’s claim solely under the Fourth Amendment
of the United States Constitution, following guidelines set by the United States
Supreme Court in interpreting the Fourth Amendment. See State v. Guzman, 959
S.W .2d 631, 633 (Tex. Crim. App. 1998).

                                          5
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).

B. Applicable Law

      The Fourth Amendment protects against unreasonable searches and seizures

by government officials. U.S. Const. amend. IV; Wiede v. State, 214 S.W .3d 17, 24

(Tex. Crim. App. 2007).      To suppress evidence because of an alleged Fourth

Amendment violation, the defendant bears the initial burden of producing evidence

that rebuts the presumption of proper police conduct. Amador, 221 S.W .3d at 672.

A defendant satisfies this burden by establishing that a search or seizure occurred

without a warrant. Id. Once the defendant has made this showing, the burden of

proof shifts to the State, which is then required to establish that the search or seizure

was conducted pursuant to a warrant or was reasonable. Id. at 673; Torres v. State,

182 S.W .3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W .3d 488, 492

(Tex. Crim. App. 2005).

      A detention, as opposed to an arrest, 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, 22, 88 S. Ct. 1868, 1880 (1968);

Carmouche v. State, 10 S.W .3d 323, 328 (Tex. Crim. App. 2000). 4 An officer


      4
         Because a routine traffic stop typically involves only a short, investigative
detention, as opposed to a custodial arrest, we analyze traffic stops under the
principles developed for investigative detentions set forth in Terry v. Ohio. 392 U.S.

                                           6
conducts a lawful temporary detention when he or she has reasonable suspicion to

believe that an individual is violating the law. Ford, 158 S.W .3d at 492. 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. Id. 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. Id.

C. Analysis

      In her sole issue, Reed argues that neither the trial court’s findings nor Officer

Miller’s testimony rises to the level of proof required for an investigative detention for

DW I. Reed cites several cases in support of her argument. See Fowler v. State,

266 S.W .3d 498, 505 (Tex. App.—Fort W orth 2008, pet. ref’d); State v. Palmer, No.

02-03-00526-CR, 2005 W L 555281, at *1, 3 (Tex. App.—Fort W orth Mar. 10, 2005,

pet. dism’d) (mem. op., not designated for publication); State v. Arriaga, 5 S.W .3d

804, 807 (Tex. App.—San Antonio 1999, pet. ref’d); State v. Tarvin, 972 S.W .2d

910, 912 (Tex. App.—W aco 1998, pet. ref’d).          These cases, however, are all

distinguishable.




at 22, 88 S. Ct. at 1880; see Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct.
3138, 3150 (1984); Martinez v. State, 236 S.W .3d 361, 369 (Tex. App.—Fort W orth
2007, no pet.).

                                            7
      In Fowler, the officer testified that he had initiated the stop because Fowler’s

truck had crossed into an adjacent same-direction lane by a tire’s width and had

drifted within its own lane on two occasions. 266 S.W .3d at 499. In Arriaga, the

officer testified that he had initiated the stop because Arriaga’s vehicle had drifted

out of its lane on multiple occasions. 5 S.W .3d at 807. And in Tarvin, the officer

testified that he had initiated the stop because Tarvin’s vehicle had been weaving

within its own lane of traffic. 972 S.W .2d at 912. Here, however, Officer Miller not

only testified that he had stopped Reed because of her driving violations, but also

because he had suspected that she might be intoxicated based on the time of day,

the area of the city that she had been coming from, and his experience with

intoxicated drivers exhibiting similar characteristics of driving. See Curtis v. State,

238 S.W .3d 376, 380–81 (Tex. Crim. App. 2007) (applying the totality of the

circumstances test and concluding that a rational inference could be made that the

driver was intoxicated based on the driver’s weaving, the time of day, and the

officer’s experience).

      In Palmer, the officer testified to facts similar to those in this case. See 2005

W L 555281, at *1–2. However, the trial court in Palmer granted the defendant’s

motion to suppress and did not enter findings of fact or conclusions of law. This

court, on appeal, noted that the videotape from the officer’s in-car camera did not

support the officer’s assertion that the driver had applied his brakes in a sudden and




                                          8
unsafe manner.        Id.   Thus, we concluded that, under the totality of the

circumstances, the facts were insufficient to support reasonable suspicion. Id.

      This appeal differs from Palmer in that the trial court here entered findings of

fact and found Officer Miller’s testimony to be credible. Furthermore, the videotape

from Officer Miller’s in-car camera supports his testimony. Thus, after giving almost

total deference to the trial court’s rulings on application-of-law-to-fact questions that

turn on credibility and demeanor and reviewing de novo those rulings that do not, we

conclude that the totality of the circumstances surrounding the stop, support a

reasonable suspicion that Reed was driving while intoxicated. Therefore, the trial

court did not err by denying Reed’s motion to suppress. Accordingly, we overrule

Reed’s first issue.

                                   IV. Conclusion

      Having overruled Reed’s sole issue, we affirm the trial court’s judgment.




                                               BOB MCCOY
                                               JUSTICE


PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: March 11, 2010


                                           9
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                                 NO. 2-09-126-CR

BONNIE MILLER REED                                                     APPELLANT

                                          V.

THE STATE OF TEXAS                                                           STATE

                                      ------------

      FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY

                                      ------------

                           DISSENTING OPINION

                                      ------------
      I, frankly, am reluctant to write this dissent because I am concerned that it

could be construed as criticism of an officer who in all ways displayed a

conscientious respect for the law and treated Appellant with courtesy. In short,

Officer Chris Miller behaved as I would hope all our law enforcement officers would.

But I must respectfully dissent from the majority opinion because I do not believe

that the record supports a finding that Officer Miller had reasonable suspicion to

detain Appellant when the officer turned on his overhead lights and Appellant

submitted to his show of authority.
      The majority states that Officer Miller was driving eastbound on Highway 183,

also known as Airport Freeway, at about 12:45 a.m. when he noticed Appellant’s

dark-colored Volkswagen driving in front of him on the highway. Although the

majority is correct in stating that he testified that the time was 12:45 a.m., the record

actually shows that Officer Miller first saw Appellant’s vehicle twenty minutes earlier

at 12:25 a.m:

      Q.       Okay. So it wasn’t 12:45, 1:00?

      A.       W hen I initially observed the vehicle?

      Q.       Correct.

      A.       Yes, that’s correct.

      Specifically, Officer Miller testified, “This was noted in my report that it was 25

minutes after midnight on the date in question.”

      As the majority notes, he testified that Appellant “had been driving away from

an area of Bedford that contained several bars and restaurants that served alcohol”

and that he had previously pulled over other drivers for driving while intoxicated

(DW I) in that same area. 1 But the video reveals that Appellant was on a freeway that

is a major state highway with restricted ingress and egress and that passes through

residential areas, warehouse areas, office areas, and areas with bars and

restaurants. The portion of Highway 183 visible on the videotape made by Officer




      1
           Majority op. at 3.

                                            1
Miller is raised and well separated from the structures along the access road. He did

not see Appellant enter the freeway. He first saw her driving on Highway 183.

      Officer Miller testified that he “was on routine patrol [and] was driving

westbound [sic] on 183 about to get on 121 and go north. . . . There was a—it was

a dark-colored Volkswagen four-door sedan driving in front of [him] on the highway.”

On cross-examination he clarified his testimony:

      A.     Again, it’s just—it’s just an observation. I’m not saying that she
             was leaving a bar. It was just I observed her leaving a part of our
             city that has many bars. It’s just an observation.

      Q.     And you didn’t see her on any side streets because, I mean, you
             can’t—let me back up. You would have to get off the highway or
             get on to the highway to get to or leave from a bar in Bedford,
             right?

      A.     Yes.

      ....

      Q.     So you just see her driving down the highway. You never saw
             her enter onto the highway; is that correct?

      A.     No.

      ....

      Q.     So, again, you didn’t ever see her leave a bar?

      A.     No, I didn’t see her leave a bar.

      Officer Miller testified that he never saw Appellant enter or leave a bar or a

restaurant; he only saw her drive past bars and restaurants on a major state highway

that passes above them.       If we hold that merely driving past a bar provides


                                          2
reasonable suspicion justifying the detention of a motor vehicle and requiring the

driver to submit to questioning and field sobriety tests, every person leaving

downtown Fort W orth, or driving down 6th Street in Austin, or driving down a

highway or freeway through any commercial area will be fair game to be pulled over,

questioned, searched for the officer’s safety, and hauled out of the car to perform

feats of line-walking, nose-touching, and balancing on one foot. Indeed, if one lives

across the street from fraternity row, one should be prepared to be pulled over every

time he leaves home because everyone knows fraternity houses are rife with

alcohol.

       The majority says that Officer Miller testified that he believed that Appellant

was driving while intoxicated because of the time of night, her driving, the area of the

city that she had been coming from, and his experience with intoxicated drivers

exhibiting similar driving characteristics. 2 But Officer Miller actually testified that it

was less the time of night than the fact that it was night:

       Q.          But, nevertheless, it’s not in your report what time it was or —it
                   doesn’t—your report is not reflective of—

       A.          I think it’s fair to say that the number of impaired drivers
                   increase[s] in the nighttime hours especially leaving an area of
                   the City that has several bars or restaurants that—if you will, that
                   serve alcohol.




       2
            Id.

                                                3
Our sister court in Austin was faced with a similar set of circumstances in Foster v.

State.3 First, the Foster court noted,

      W hile the Court of Criminal Appeals no longer employs the “as
      consistent with innocent activity as with criminal activity” test for
      reasonable suspicion, the plausibility of an innocent explanation in this
      case affects our determination of whether there was a reasonable basis
      for suspecting that Foster was intoxicated. 4

      W ith that caveat in mind, I would look at the trial court’s determination of

credibility; that is, the trial court’s findings of fact. Officer Miller testified that he

pulled Appellant over because he saw her commit a traffic violation. But he was

mistaken. W hat he observed was not a violation of the law. As this court has

previously explained, reasonable suspicion of an alleged traffic violation cannot be

based on a police officer’s mistaken understanding of traffic laws. 5

      As the Foster court posited, “In the absence of a traffic offense, was there

reasonable suspicion of intoxication?” 6 A reviewing court must determine whether

“the combined weight of [the] circumstances is . . . so much greater than the

aggregation of their individual weights that it allows for a rational inference of




      3
           297 S.W .3d 386 (Tex. App.—Austin 2009, pet. granted).
      4
        Id. at 393 (citing Curtis v. State, 238 S.W .3d 376, 379 (Tex. Crim. App.
2007)).
      5
          Fowler v. State, 266 S.W .3d 498, 504 (Tex. App.—Fort W orth 2008, pet.
ref’d); see United States v. Granado, 302 F.3d 421, 423 (5th Cir. 2002).
      6
           297 S.W .3d at 393.

                                            4
intoxication.” 7 The majority points out that the trial court found no traffic violation, no

unsafe driving, very light traffic, and no erratic speed changes. 8

       The majority then properly addresses the remaining justifications for the

detention.

       1. Time of night. “Time of day, by itself, is ‘owed virtually no weight’ as a

factor in determining reasonable suspicion.” 9

       2. Leaving a bar area. Actually, Officer Miller did not see Appellant leaving

a bar area but, rather, driving on a freeway/major state highway that was routed

through an area that had some bars and restaurants. He did not observe her leaving

any parking lot or even driving on a roadway other than Highway 183 with limited

ingress and egress. He did not observe her at any point before she was driving on

Highway 183. As the Foster court stated, “[L]ocation is generally ‘an insufficient

basis for a rational inference that would lead to a reasonable suspicion.’” 10




       7
       Id. (citing State v. Thirty Thousand Six Hundred Sixty Dollars & No/100,
136 S.W .3d 392, 400 (Tex. App.—Corpus Christi 2004, pet. denied)).
       8
            Majority op. at 4.
       9
        Foster, 297 S.W .3d at 393 (quoting Thirty Thousand Six Hundred Sixty
Dollars & No/100, 136 S.W .3d at 400).
       10
         Id. (quoting Thirty Thousand Six Hundred Sixty Dollars & No/100, 136
S.W .3d at 401).

                                             5
       3. Crossing on to the shoulder of the roadway, once by one-half the

width of the vehicle and a second time by a few inches and “[u]nusual use of

turn signal.”

       The trial court correctly concluded that the record reveals that Appellant

committed no traffic offense. 11 W as the use of the turn indicator, combined with the

other circumstances, sufficient to provide reasonable suspicion to detain Appellant?

Officer Miller suggested that he thought that Appellant’s signal was a violation of the

law.

       Section 545.104(b) of the transportation code provides in pertinent part that

“[a]n operator intending to turn a vehicle right or left shall signal continuously for not

less than the last 100 feet of movement of the vehicle before the turn.” 12 The statute

does not provide for a maximum distance beyond which a person may not signal a

turn, only a minimum distance. Officer Miller did not see Appellant violate the law

by engaging her turn indicator more than 100 feet before changing lanes or exiting

the freeway.

       An officer’s reasonable suspicion of an alleged traffic violation cannot
       be based on a mistaken understanding of traffic laws. And an officer’s
       honest but mistaken understanding of the traffic law which prompted a
       stop is not an exception to the reasonable suspicion requirement. 13


       11
        See Fowler, 266 S.W .3d at 504–05; State v. Huddleston, 164 S.W .3d 711,
716 (Tex. App.—Austin 2005, no pet.).
       12
             Tex. Transp. Code Ann. § 545.104(b) (Vernon 1999).
       13
             Fowler, 266 S.W .3d at 504 (citations omitted).

                                            6
The issue, then, is whether the non-violation was a circumstance providing, in light

of all the circumstances, reasonable suspicion for Officer Miller to stop Appellant.

This question requires close examination of the videotape.

      The videotape shows that when Appellant first engaged her turn signal, there

was a traffic lane to her right and a sign indicating the Harwood exit from the

freeway. After she engaged the turn indicator, it became clear that the lane to her

right merged into the lane she was in. At this point she had a choice to make. She

could disengage the turn indicator, and then immediately re-engage it in order to

signal her intent to exit the freeway, or she could leave the turn indicator on. W as

one choice really so much more rational than the other that to make the other choice

indicated intoxication? W as her decision not to flick the indicator off and then

immediately on even unreasonable?

      The detention cannot be justified by the fruits of the detention.           The

reasonable suspicion for the stop must exist at the time the officer exercises a show

of authority and the suspect indicates an intent to or actually acquiesces to the show

of authority. 14 Officer Miller engaged his overhead lights before Appellant exited the

freeway.

      I would hold that the combined circumstances of Officer Miller’s seeing

Appellant’s vehicle traveling at 12:25 a.m. on a limited ingress/egress major highway



      14
          St. George v. State, 237 S.W .3d 720, 725–26 (Tex. Crim. App. 2007)
(citing Terry v. Ohio, 392 U.S. 1, 19–20, 88 S. Ct. 1868, 1878–79 (1968)).

                                          7
through an area containing bars and restaurants, seeing the vehicle’s tires crossing

or touching the right lane line twice, and seeing Appellant indicating her exit from the

freeway for more than 100 feet do not provide reasonable suspicion to believe that

Appellant was committing the offense of DW I. I would hold, therefore, that the State

did not sustain its burden of proving that the warrantless stop was lawful, and I would

further hold that the trial court abused its discretion by denying Appellant’s motion

to suppress the fruits of the stop. Because the majority does not, I must respectfully

dissent.



                                                      LEE ANN DAUPHINOT
                                                      JUSTICE

PUBLISH

DELIVERED: March 11, 2010




                                           8
