                                    In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                             _________________
                             NO. 09-13-00132-CR
                             _________________

                     THE STATE OF TEXAS, Appellant

                                      V.

                   JARED EUGENE VICTORIA, Appellee

________________________________________________________________________

               On Appeal from the County Court at Law No. 5
                       Montgomery County, Texas
                        Trial Cause No. 12-281209
________________________________________________________________________

                        MEMORANDUM OPINION

      The trial court suppressed evidence from a traffic stop in a DWI case. The

State appealed. We affirm.

                               BACKGROUND

      Appellee, Jared Eugene Victoria, was arrested and charged with DWI after

he was pulled over by Trooper Cody Cullar pursuant to a traffic stop. Victoria

filed a motion to suppress evidence obtained during the traffic stop. Trooper


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Cullar was the only witness who testified at the hearing. Trooper Cullar testified

that he initiated the traffic stop after he observed Victoria‟s vehicle cross the white

fog line and drive onto the improved shoulder. Cullar observed Victoria move

onto the shoulder as two on-coming vehicles passed by him. Cullar reasoned that

it was not necessary for Victoria to drive onto the improved shoulder to avoid a

collision or for any other reason. The video of the stop from Cullar‟s police

dashcam was admitted into evidence and viewed by the trial court.

      After hearing the testimony and viewing the video, the trial court granted

Victoria‟s motion to suppress. The trial court entered separate findings of fact and

conclusions of law. The State filed a notice of appeal. On appeal, the State argues

that the trial court abused its discretion in finding that Victoria did not violate the

provisions of section 545.058(a) of the Texas Transportation Code because the

evidence established that Victoria‟s movement onto the improved shoulder was not

for one of the seven enumerated reasons for which a person may lawfully do so.

See generally Tex. Transp. Code Ann. § 545.058(a) (West 2011).

                        APPLICABLE LAW & ANALYSIS

      An officer may lawfully stop a driver when the officer has probable cause to

believe the driver has committed a traffic violation. Walter v. State, 28 S.W.3d

538, 542 (Tex. Crim. App. 2000). An officer may also make a lawful traffic stop if

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he has reasonable suspicion to believe that an individual is violating the law.

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011); Ford v.

State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).           “A police officer has

reasonable suspicion to detain if he has specific, articulable facts that, combined

with rational inferences from those facts, would lead him reasonably to conclude

that the person detained is, has been, or soon will be engaged in criminal activity.”

Derichsweiler, 348 S.W.3d at 914. This is an objective standard that disregards an

officer‟s subjective intent, and instead, considers whether the totality of the

circumstances provide an objective justifiable basis for the stop. Id.; see also

Garcia v. State, 827 S.W.2d 937, 944-45 (Tex. Crim. App. 1992). Thus, in making

a determination regarding whether reasonable suspicion for the stop existed, the

pertinent question is whether a reasonable officer in the same situation would

believe a crime had been or was being committed. State v. Duran, No. PD-0771-

12, 2013 WL 1628957, *3 (Tex. Crim. App. Apr. 17, 2013); see also Davis v.

State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).

      In reviewing a trial court‟s ruling on a motion to suppress, we afford “almost

total deference” to the trial court‟s fact findings that are supported by the record.

Duran, 2013 WL 1628957, at *3; State v. Weaver, 349 S.W.3d 521, 525 (Tex.

Crim. App. 2011); State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App.

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2011). The same deference applies to a trial court‟s determination of historical

facts based on a videotape recording admitted in evidence. Duran, 2013 WL

1628957, at *3; Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);

Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006).                    In

determining whether the trial court‟s fact findings are supported by the evidence,

we view the evidence in the light most favorable to the trial court‟s ruling. State v.

Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).              “The winning side is

afforded the „strongest legitimate view of the evidence‟ as well as all reasonable

inferences that can be derived from it.” Duran, 2013 WL 1628957, at *4. We

apply the same deferential standard of review to the trial court‟s ruling on “„mixed

questions of law and fact‟” when resolution of those issues turn on an evaluation of

credibility and demeanor. Amador, 221 S.W.3d at 673. We review the trial court‟s

application of the law to the facts de novo, and will affirm the trial court‟s ruling if

it is reasonably supported by the record and is correct on any applicable theory of

law. Duran, 2013 WL 1628957, at *4; Weaver, 349 S.W.3d at 525.

      Section 545.058(a) of the Texas Transportation Code provides as follows:

      (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:

        (1) to stop, stand, or park;
        (2) to accelerate before entering the main traveled lane of traffic;
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        (3) to decelerate before making a right turn;
        (4) to pass another vehicle that is slowing or stopped . . . ;
        (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).

      The trial court heard Trooper Cullar‟s testimony and viewed the police

dashcam video of the purported traffic violation and subsequent traffic stop. In its

findings of fact, the trial court found that “two vehicles approached, eastbound

(traveling in the direction of Defendant) in the proper lane of traffic[,]” and “[j]ust

as the two vehicles approached and passed Defendant‟s vehicle, his two passenger

side tires appear to cross the white fog []line onto the improved shoulder.” The

trial court further found, “[o]nce the two vehicles are completely past Defendant,

his vehicle returns to the proper lane of traffic and continues in a safe manner[,]”

and “[t]he Defendant‟s action of crossing the fog-line, onto the improved shoulder,

appeared to be done out of necessity, safely and perhaps, to avoid a collision.”

Additionally, the trial court stated in its findings of fact that the time of night,

speed limit, and lack of a middle turn lane “all add[ed] to the prudence of

[Defendant‟s] action of easing his vehicle partially onto the shoulder as [the two

vehicles] passed.”

      The trial court made the following conclusions of law:

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      1. Defendant‟s action of easing his vehicle across the fog line, onto
         the improved shoulder was not a clear violation of Texas
         Transportation Code §545.058 as it appears his actions were
         intentional, calculated to avoid, (or distance himself from)
         oncoming traffic on a two-lane, divided highway with a posted
         speed limit of 45 miles per hour.

      2. No other violation of any state law, which would have justified
         stopping Defendant were noted, testified to or visible on the video,
         introduced in evidence at the hearing.

      In its brief, the State emphasizes the trial court‟s use of the word “perhaps”

in its findings that Victoria‟s crossing the fog line onto the improved shoulder

“appeared to be done out of necessity, safely and perhaps, to avoid a collision.”

But, the Texas Court of Criminal Appeals recently explained that fact findings are

not to be “considered piecemeal” but in their totality. Duran, 2013 WL 1628957,

at *4. The totality of the trial court‟s findings, based on both Cullar‟s testimony

and the video, support a reasonable conclusion that the trial court disbelieved

Cullar‟s testimony that it was not necessary for Victoria to move onto the

improved shoulder to avoid a collision. We must give the appropriate deference to

the trial court‟s fact findings that are supported by the record. See id. at * 3-5; see

also Weaver, 349 S.W.3d at 525.

      Based on our review of the record, the trial court reasonably could have

concluded that Victoria drove onto the improved shoulder out of necessity and in a

safe manner to avoid a collision with the two on-coming vehicles and that it was
                                        6
not reasonable for Trooper Cullar to conclude that the driver committed a traffic

violation. Because the record supports the trial judge‟s findings, we uphold the

trial court‟s ruling granting the motion to suppress.

      AFFIRMED.

                                                 __________________________
                                                     CHARLES KREGER
                                                          Justice

Submitted on May 29, 2013
Opinion Delivered June 12, 2013
Do not publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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