             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-17-00408-CR
     ___________________________

  CHASE DANIEL KILLION, Appellant

                    V.

         THE STATE OF TEXAS


On Appeal from County Criminal Court No. 1
           Tarrant County, Texas
         Trial Court No. 1497685


   Before Gabriel, Kerr, and Pittman, JJ.
  Memorandum Opinion by Justice Pittman
                             MEMORANDUM OPINION

       Appellant Chase Daniel Killion appeals from his conviction for driving while

intoxicated. In his sole point, Appellant argues that the trial court erred in denying his

motion to suppress. Because we hold that sufficient evidence supported the trial

court’s ruling, we affirm.

                                   BACKGROUND

       The State charged Appellant by information with driving while intoxicated with

a blood alcohol content of 0.15 or more. The information included an enhancement

paragraph alleging a prior misdemeanor conviction for deadly conduct. Appellant

filed a motion to suppress asserting that he had been arrested and detained without a

warrant and without probable cause that he had committed a traffic violation or that a

crime was in progress. The trial court denied the motion after a hearing.

       The trial court made the following findings of fact and conclusions of law:

              1.    On 2/15/2017, Officer [Cleburn] Eardley of the Sansom
       Park Police Department was traveling on S[tate] Highway 199 in Sansom
       Park, TX when he saw a motor vehicle traveling on the same highway in
       the opposite direction. The officer made a u-turn and proceeded to
       catch up with the vehicle once they were traveling the same direction.

             2.     The driver of the motor vehicle was eventually identified as
       [Appellant].

              3.     Officer Eardley, a credible witness, testified, and the Court
       so finds, that as the officer traveled behind [Appellant]’s vehicle,
       [Appellant]’s vehicle veered off to the improved shoulder to the right of
       the highway 3 times.




                                            2
             4.     Officer Eardley believed that [Appellant] did not drive
      entirely within a single lane and also that [Appellant]’s movement from
      his lane was not safe because he was traveling in close proximity to cars
      in front of him, and those drivers ahead of [Appellant] could become
      distracted due to [Appellant]’s repeated drifting to the right in a short
      period of time directly behind them.

             5.     Because [Appellant] did not drive entirely within a single
      lane, and it was unsafe to do so, the officer believed [Appellant] was in
      violation of Texas Transportation Code [Section] 545.060.[1]

             6.    The Officer also cited witnessing a second traffic code
      violation, namely Texas Transportation Code [Section] 545.058,[2] or
      driving on an improved shoulder. None of the 7 exceptions allowing
      [Appellant]’s vehicle to legally drive on an improved shoulder were
      present.

              7.    Other factors the Officer listed as reasons for the stop
      included the time of day, close proximity to bars in the area, direction of
      travel, repeatedly touching or crossing the line multiple times in a short
      period of time, and touching or crossing the solid line multiple times in a
      short 2 block distance. Officer [Eardley] claimed these factors indicated
      to him reasonable suspicion that a crime might have been in progress,
      specifically Driving While Intoxicated.

            8.    Due to the violations of the [T]ransportation [C]ode noted
      above, and the other factors listed, Officer Eardley performed a traffic
      stop and observed signs of intoxication.

            ....

             Based on the above findings, the Court concludes that reasonable
      suspicion did exist for Officer Eardley to stop [Appellant’s] vehicle.




      1
         See Tex. Transp. Code Ann. § 545.060 (regulating movement between marked
traffic lanes).

      See id. § 545.058 (restricting driving on an improved shoulder).
      2




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      After the trial court denied his suppression motion, Appellant pled guilty under

a plea agreement in which the State agreed to waive the information’s enhancement

paragraph. In accordance with the plea agreement, the trial court sentenced Appellant

to forty days’ confinement in jail and a $500 fine. Appellant now brings this appeal.

                               POINT ON APPEAL

      In one point, Appellant argues that the trial court erred by denying his motion

to suppress because Officer Eardley lacked reasonable suspicion that Appellant either

violated the Texas Transportation Code or was driving while intoxicated.

                            STANDARD OF REVIEW

      We apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress evidence. 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 defer almost totally to

a trial court’s rulings on questions of historical fact and application-of-law-to-fact

questions that turn on evaluating 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 suppression

motion, we must view the evidence in the light most favorable to the 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 the trial court makes explicit fact findings, we

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determine whether the evidence, when viewed in the light most favorable to the trial

court’s ruling, supports those findings. Kelly, 204 S.W.3d at 818–19. We then review

the trial court’s legal ruling de novo unless its explicit fact findings that are supported

by the record are also dispositive of that ruling. Id. at 818.

                                     DISCUSSION

       We begin with Appellant’s argument that Officer Eardley lacked reasonable

suspicion that Appellant violated Texas Transportation Code Section 545.058. Under

that statute, a vehicle 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 for one of seven purposes listed in the statute, such as to allow a

faster-traveling vehicle to pass. Tex. Transp. Code Ann. § 545.058(a). Appellant

admits that none of the seven statutory reasons existed in this case. But he contends

that “his momentary, slight drift over the fog line”3 did not give rise to reasonable

suspicion that he drove on the improved shoulder.

I.     The State Produced Evidence Supporting a Finding that Appellant’s
       Truck Crossed the Fog Line.

       At the hearing on the motion to suppress, the State called Officer Eardley as its

only witness.    Officer Eardley testified that on February 15, 2017, at around

       3
        Like the parties, we use the term “fog line” to refer to the solid white line
marking the boundary of a lane—in this case, the right-hand lane—and the shoulder.
See Reyna v. State, No. 03-16-00774-CR, 2017 WL 2926650, at *1 n.3 (Tex. App.—
Austin July 6, 2017, no pet.) (mem. op., not designated for publication) (defining “fog
line”).


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10:50 p.m., he was driving on State Highway 199 in Tarrant County. Appellant was

driving a Dodge Ram in the opposite direction on State Highway 199. Officer

Eardley made a u-turn, which placed him behind Appellant. Officer Eardley testified

that he decided to stop Appellant after he saw Appellant’s truck veer three times onto

the improved right-hand shoulder, crossing the white fog line to do so. Officer

Eardley stated that crossing the fog line onto the improved shoulder violated the

Texas Transportation Code.       Officer Eardley further testified that based on his

training and experience, given the time of day, Appellant’s travel direction and relative

closeness to nearby bars—about three blocks away—and Appellant’s crossing the fog

line three times in a short distance, he thought Appellant was possibly driving while

impaired.

      The State played a video from Officer Eardley’s dash camera. In the video,

Appellant’s truck clearly moves to the right side of his lane three times. For the first

two rightward movements, his right tires appear to cross the fog line and move onto

the shoulder, but on the second instance, the video is dark and therefore unclear.

Because the trial court found Officer Eardley’s testimony credible, we must defer to

the trial court’s finding on those two instances. See Amador, 221 S.W.3d at 673.

      For the third instance, Officer Eardley’s vehicle is closer to Appellant’s, and the

video is lighter and therefore clearer. The video shows Appellant’s right tires drive

onto the fog line. In the next moment, Appellant’s right tires begin to move across

the fog line onto the right shoulder, and Officer Eardley simultaneously turns on his

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lights to stop Appellant. Thus, while Appellant did cross over the fog line a third

time, Officer Eardley did not witness his tires actually move onto the shoulder before

deciding to stop Appellant. Consequently, we do not accept his testimony that he

stopped Appellant after seeing Appellant’s right tires actually cross onto the shoulder a

third time. See State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013) (stating

that appellate courts may review de novo indisputable visual evidence contained in a

videotape).

      However, we note that the evidence still supports the trial court’s most relevant

fact findings. While the trial court found that Appellant’s vehicle veered to the

improved right shoulder three times, it did not find reasonable suspicion based on

three instances; rather it found that Officer Eardley stopped Appellant based on,

among other factors, Appellant’s “touching or crossing the line multiple times” and

that Officer Eardley cited witnessing a violation of Section 545.058 as a basis for the

stop. [Emphasis added.]

II.   The Evidence Supports Reasonable Suspicion.

      At the suppression hearing, the State had to establish that Officer Eardley had

reasonable suspicion that Appellant violated the law, not that Appellant actually did.

See Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015) (“The question in

this case is not whether [the] appellant was guilty of the traffic offense but whether

the trooper had a reasonable suspicion that she was.”).           The record supports

reasonable suspicion that Appellant drove on the improved right shoulder in violation

                                           7
of Section 545.048(a). Even if we disregard Appellant’s third instance of crossing the

right fog line, the State’s evidence supported a finding that Appellant’s right tires fully

crossed the line twice, as Appellant acknowledges. The State produced evidence,

which the trial court found credible, that Appellant’s right tires crossed onto the right

shoulder on two occasions in less than twenty seconds. While briefly touching the

fog line one time does not necessarily support reasonable suspicion of a violation of

Section 545.058, State v. Cortez, 543 S.W.3d 198, 206 (Tex. Crim. App. 2018),

Appellant’s driving did. See Tyler v. State, 161 S.W.3d 745, 750 (Tex. App.—Fort

Worth 2005, no pet.) (holding that officer’s seeing the appellant’s right tires crossing

fog line and straddling it for a few moments was sufficient to give the officer

reasonable suspicion that the appellant violated Section 545.058); see also Stegal v. State,

No. 05-16-00098-CR, 2017 WL 1536516, at *4 (Tex. App.—Dallas Apr. 26, 2017, no

pet.) (mem. op., not designated for publication) (concluding that the deputy had

objective facts and rational inferences from those facts to support a reasonable

suspicion of a violation of Section 545.058(a) when the appellant’s right tires crossed

the fog line for a few seconds at least twice); State v. Hanath, No. 01-08-00452-CR,

2010 WL 3833919, at *1, *4 n.4 (Tex. App.—Houston [1st Dist.] Sept. 30, 2010, no

pet.) (mem. op., not designated for publication) (holding officer had reasonable

suspicion to believe the appellee violated Section 545.058 after witnessing the

appellee’s two right tires briefly drift across the white fog line and onto the improved

shoulder as the appellee rounded a curve in the road and stating that “the fact that the

                                             8
two right tires on [the] appellee’s truck were only on the shoulder for mere seconds

does not affect the application of [S]ection 545.058(a)”); State v. Wise, No. 04-04-

00695-CR, 2005 WL 2952357, at *3 (Tex. App.—San Antonio Oct. 26, 2005, no pet.)

(mem. op., not designated for publication) (reversing trial court’s grant of motion to

suppress where officer testified that he saw the appellant veer onto the road’s

shoulder with both right tires and then correct her vehicle back into her lane).

      Appellant asserts that the cases holding that a driver’s tires crossing over the

fog line gives rise to reasonable suspicion of a violation of Section 545.048(a) are

distinguishable or should not be followed. However, we consider the cases we have

cited to be analogous and persuasive. We overrule this part of Appellant’s point.

      Because the evidence regarding Appellant’s Section 545.048(a) violations,

viewed in the light most favorable to the trial court’s ruling, supports the denial of the

motion to suppress, we do not address Appellant’s arguments that Officer Eardley

lacked reasonable suspicion that Appellant violated Transportation Code Section

545.060 or that he was driving while intoxicated.

                                   CONCLUSION

      Having overruled the dispositive part of Appellant’s sole point, we affirm the

trial court’s denial of Appellant’s motion to suppress.




                                            9
                                   /s/ Mark T. Pittman
                                   Mark T. Pittman
                                   Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 31, 2019




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