                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00317-CR


DONALD ADAMS LOTHROP                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE

                                      ----------

           FROM THE COUNTY COURT AT LAW OF WISE COUNTY

                                      ----------

                         MEMORANDUM OPINION1
                                      ----------

      This is an appeal resulting from a guilty plea to the offense of driving while

intoxicated pursuant to an agreed plea recommendation that was approved by

the trial court. Punishment was assessed at 180 days in the county jail and a

fine of $1,500.00. Imposition of the jail time was suspended, and Appellant was

placed on community supervision for a period of sixteen months. Appeal in this

case is pursuant to Texas Code of Criminal Procedure section 44.02. Appellant

filed a pretrial motion to suppress challenging the initial stop of his vehicle. The


      1
       See Tex. R. App. P. 47.4.
trial court overruled the motion, and this appeal followed.    In his sole point,

Appellant contends that the traffic stop of his vehicle was not based on either

probable cause or reasonable suspicion. We disagree and affirm.

FACTS

      The record shows that Officer Vince Estel of the Boyd Police Department

was traveling eastbound on State Highway 114 in Wise County when he was

approached by oncoming, westbound traffic. Estel saw a lead vehicle in the

westbound lane begin to slow for an upcoming intersection of Highway 114 and a

railway crossing. He then witnessed a second vehicle, driven by Appellant, pass

the lead vehicle by using the improved shoulder of the highway. Both westbound

vehicles, the lead vehicle and Appellant’s vehicle, crossed the railroad tracks at

about the same time. Having personally witnessed this, Estel effectuated a traffic

stop pursuant to Texas Transportation Code section 545.058(a).2 The traffic stop

resulted in an investigation, prosecution, and conviction of Appellant for the

offense of driving while intoxicated.



      2
       In pertinent part, the statute provides that

       (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:

             ...

             (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.

Tex. Transp. Code Ann. § 545.058(a)(4) (West 2011) (emphasis added).

                                          2
ARGUMENTS OF PARTIES

         In his brief to this court, Appellant points out that his initial argument prior

to the motion to suppress hearing was that he was passing a vehicle that had

slowed to make a left turn at an intersection, which would have arguably brought

him within the exception for passing “another vehicle . . . preparing to make a left

turn.”       Id. (emphasis added).   However, immediately upon conclusion of the

suppression hearing and in his brief, he argues that the facts herein fit the portion

of subsection (a)(4) that provides an exception for passing “another vehicle that

is slowing or stopped on the main traveled portion of the highway.”              See id.

(emphasis added).          He argues that the uncontested testimony of Estel

established that Appellant attempted to pass the lead vehicle, which was slowing

down in the main portion of the highway, on the shoulder of said highway. He

avers that since such testimony was uncontroverted, his defense was

established as a matter of law and he was thus entitled to relief.3

         The State agrees that the testimony of Estel was uncontroverted and

undisputed, but disagrees with Appellant on the conclusions to be drawn from

that testimony.       The State appears to argue that Appellant failed to raise a

complete defense under section 545.058(a)(4) in that Appellant failed to produce

evidence that passing on the shoulder was necessary and done safely pursuant

         3
       Not surprisingly, though Appellant did not formally abandon his “left turn”
argument, he essentially jettisoned it in favor of his “passing on the shoulder”
defense. Inferentially, the trial court believed Estel’s testimony that there was no
place for the lead vehicle to turn left as it was being passed by Appellant.
Pursuing reversal of trial court credibility determinations on appeal generally
produces very limited success.

                                             3
to subsection (a). The State takes the position that it made a prima facie case for

reasonable suspicion under section 545.058(a)(4) when Estel first observed

Appellant drive on the shoulder of the roadway to the right of the lead car at the

railroad tracks. Although the State did not explicitly argue that Appellant had the

burden of production of potential defensive evidence, the tenor of its argument in

its brief is that Appellant did not elicit any evidence either from the officer or

Appellant that would have raised a defense under section 545.058(a)(4).

STANDARD OF REVIEW

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.

Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

When the trial court’s rulings do not turn on the credibility and demeanor of the

witnesses, we review de novo a trial court’s rulings on mixed questions of law

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

When the trial court does not make explicit findings of historical facts, as in this

case, we review the evidence in the light most favorable to the trial court’s ruling

and assume the trial court made implicit findings of fact supporting its ruling, so

long as those findings are supported by the record. Carmouche, 10 S.W.3d at

327–28.

REASONABLENESS OF STOP

      When an individual is stopped without a warrant, the State bears the

burden to prove the reasonableness of the warrantless detention. See Ford v.

State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). An officer conducts a lawful
                                         4
temporary detention when he has reasonable suspicion to believe that an

individual is violating the law. Id. The burden is on the State to elicit testimony

showing sufficient facts to create a reasonable suspicion. Garcia v. State, 43

S.W.3d 527, 530 (Tex. Crim. App. 2001). The State need not establish with

absolute certainty that a crime has occurred to show reasonable suspicion. Id.

An officer needs only a reasonable basis for suspecting that a person has

committed a traffic offense to initiate a legal traffic stop. See Gajewski v. State,

944 S.W.2d 450, 452 (Tex. App.––Houston [14th Dist.] 1997, no pet.); Drago v.

State, 553 S.W.2d 375, 377–78 (Tex. Crim. App. 1977).

APPLICABLE LAW

      Although section 545.058 is not entirely clear, it appears as if the offense

of driving on the shoulder is implicit in the wording and structure of the seven

exceptions. In other words, driving on the shoulder of a roadway is an offense by

implication because the seven exceptions expressly provide a defense to driving

on the shoulder. Unless there is further showing, driving on the shoulder is prima

facie evidence that an offense has been committed. See Tex. Transp. Code

Ann. § 545.058(a)(1)–(7); see also Tyler v. State, 161 S.W.3d 745, 749–50 (Tex.

App.––Fort Worth 2005, no pet.)

      In Tyler this court was confronted with a very similar issue to that in the

instant case. Tyler was observed by a police officer driving his vehicle across the

traveling lane of a roadway onto the shoulder and straddling the shoulder and the

traveling lane for a brief period of time. The State maintained that reasonable

suspicion existed for the officer to temporarily detain Tyler because he committed
                                         5
the offenses of failure to stay in a single marked lane, see Tex. Transp. Code

Ann. § 545.060(a) (West 2011) and driving on the shoulder. See Tyler, 161

S.W.3d at 747.     This court held that there was no evidence in the record

indicating that it was “necessary” for Tyler to drive on the shoulder under any one

of the exceptions listed in section 545.058(a). Id. at 750. This court observed

that there were three elements contained in section 545.058(a) that would be a

necessary predicate to the establishment of a defense under that section: (1)

driving on the shoulder was done safely, (2) it was done of necessity, and (3)

only then to effectuate one of the seven defenses enumerated. See id. at 749–

50; see also Tex. Transp. Code Ann. § 545.058(a)(1)–(7).

      Although not explicitly stated in our opinion in Tyler, implicit in our holding

is that in a case where reasonable suspicion is the justification offered by the

State for a traffic stop, once the State makes a prima facie showing of a traffic

offense, a burden of production then shifts to the defendant to show, through

direct or cross-examination, that driving on the shoulder was done (1) safely, (2)

out of necessity, and (3) to effectuate one of the seven defenses enumerated in

the statute.   See Tyler, 161 S.W.3d at 749–50; Tex. Transp. Code Ann.

§ 545.058(a)(1)–(7). The burden of proof, of course, remains on the State to

prove guilt beyond a reasonable doubt. Tex. Penal Code Ann. § 2.01 (West

2011). Although the defenses listed in section 545.058(a) are not labeled such

that Texas Penal Code section 2.03(a) would be facially applicable, the structure

of the statute is analagous to self-defense found in Texas Penal Code section

9.31 (self-defense). See Tex. Penal Code Ann. §§ 2.03(a), 9.31 (West 2011).
                                         6
The Texas Court of Criminal Appeals interpreted the two burdens (production

and persuasion) extant in self-defense in Zuliani v. State, 97 S.W.3d 589, 594

(Tex. Crim. App. 2003).

      In Zuliani, the court of criminal appeals opined “a defendant bears the

burden of production, which requires the production of some evidence that

supports the particular defense.” Id. (quoting Saxton v. State, 804 S.W.2d 910,

913 (Tex. Crim. App. 1991)).      Once the defendant comes forward with such

evidence, the State then bears the burden of persuasion to disprove the raised

defense.    See id.    The burden of persuasion is not one that requires the

production of evidence; rather, it requires only that the State prove its case

beyond a reasonable doubt.       See id.       This apportionment of the burdens of

production and persuasion is also applicable to the seven defenses in section

545.058(a), and it was implicit in our holding in Tyler.

APPLICATION OF LAW TO FACTS

      In the instant case, as was alluded to earlier, Appellant has essentially

abandoned his “left turn” defense and now argues in this court that he was

attempting “to pass another vehicle that [was] slowing or stopped on the main

traveled portion of the highway.” See Tex. Transp. Code Ann. § 545.058(a)(4).

This evidence was developed by both the State and Appellant in the record, and

both concede its existence. However, no evidence was offered by either side to

the effect that Appellant’s slowing or passing the stopped vehicle was either

necessary or safe as required by the statute and this court’s decision in Tyler.

Indeed, the only evidence remotely relevant was offered by the State when Estel
                                           7
testified that Appellant passed the lead vehicle when both vehicles were passing

over railroad tracks. It would be difficult to imagine a scenario when such an

action would be either necessary or safe, and none was presented by Appellant.

Appellant failed to satisfy his burden of production.     Since no findings and

conclusions are in the record, we consider the implied findings of the trial court

that are consistent with the law, which we have reviewed de novo. The record

being devoid of any facts that would have shown that driving on the shoulder was

necessary and safe, we are constrained to find that Appellant did not carry his

burden of production and that reasonable suspicion for Estel to stop Appellant’s

vehicle for driving on the shoulder of the roadway was shown to be in

accordance with the law. Appellant’s sole point is overruled.

      The judgment of the trial court is affirmed.



                                                     PER CURIAM

PANEL:    CHARLES F. CAMPBELL (Senior Judge, Retired, Sitting by
Assignment); LIVINGSTON, C.J.; and GABRIEL, J.

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

DELIVERED: August 31, 2011




                                         8
