      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00491-CR



                                  The State of Texas, Appellant

                                                  v.

                                    Kevin Rothrock, Appellee


   FROM COUNTY COURT AT LAW NO. 8 OF TRAVIS COUNTY, NO. C-1-CR-08-216607
        HONORABLE CARLOS HUMBERTO BARRERA, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The State appeals the trial court’s order granting appellee Kevin Rothrock’s motion

to suppress evidence obtained pursuant to a traffic stop. The State argues that there was reasonable

suspicion to justify the stop based on evidence of possible intoxication and evidence of a

traffic violation. We affirm the trial court’s order.

               On July 17, 2009, Department of Public Safety Trooper Jason Norton initiated a

traffic stop of a truck driven by Rothrock. Norton testified that his suspicions were aroused when

he observed Rothrock leaving a bar at 2:30 a.m., accompanied by a large cloud of dust. Norton, who

had been driving on the opposite side of a divided highway, turned around and began pursuing

Rothrock’s vehicle. When Norton caught up to Rothrock, he testified that he observed Rothrock

weave within his lane and briefly cross over the left fog line onto the improved shoulder. At this
point, Norton testified, he had reasonable suspicion both that Rothrock was intoxicated and that

Rothrock had committed a traffic violation.

                Rothrock was charged by information for driving while intoxicated. See Tex. Penal

Code Ann. § 49.04(a) (West 2003). Rothrock filed a pretrial motion to suppress, arguing that Norton

had no reasonable suspicion to initiate the traffic stop. The trial court granted Rothrock’s motion,

and the State appeals.

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

of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); see also Guzman

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court’s findings of fact are given

“almost total deference.” Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 89-90. The

trial court’s denial of a motion to suppress is reviewed for abuse of discretion, Oles v. State,

993 S.W.2d 103, 106 (Tex. Crim. App. 1999), but when the trial court’s rulings do not turn on the

credibility and demeanor of the witnesses, we apply a de novo standard of review, Estrada v. State,

154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

                A police officer may stop and briefly detain a person for investigative purposes if

the officer has reasonable suspicion supported by articulable facts that criminal activity may be afoot.

Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); Hernandez v. State, 983 S.W.2d

867, 869 (Tex. App.—Austin 1998, pet. ref’d). The reasonableness of a temporary detention must

be examined in terms of the totality of the circumstances. Woods, 956 S.W.2d at 38. A detaining

officer must have specific, articulable facts that, taken together with rational inferences from




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those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in

criminal activity. Id.

                The first of the State’s two theories is that the traffic stop was justified based

on reasonable suspicion that Rothrock was intoxicated. Trooper Norton, who routinely patrolled

the area, testified that he observed Rothrock’s truck leaving a bar around 2:30 a.m. The fact that the

truck raised a large cloud of dust when leaving raised a red flag in Norton’s mind, suggesting

something unusual—that, for example, there may have been a fight. When Norton was able to turn

around to investigate, the truck was gone. About five minutes later, Norton caught up to the truck.

Norton testified that he observed the truck weaving in its lane.

                The facts here are similar to the facts in State v. Guzman, 240 S.W.3d 362

(Tex. App.—Austin 2007, pet. ref’d), and in Foster v. State, 297 S.W.3d 386 (Tex. App.—Austin

2009, pet. granted). In Guzman, we held that an officer’s observing a vehicle spinning its tires

at a downtown location at night did not create reasonable suspicion of driving while intoxicated.

240 S.W.3d at 367-68.          In Foster, we held that a driver’s lurching his vehicle in

similar circumstances, likewise, did not create reasonable suspicion of driving while intoxicated.

297 S.W.3d at 393-94.

                Here, the only evidence—beyond unsubstantiated suspicions—that Rothrock

was intoxicated was his pulling out of a bar parking lot quickly and late at night. While, unlike in

Guzman and Foster, the officer here also testified that he observed Rothrock’s vehicle weaving in

its lane, the trial court chose not to credit this testimony as sufficient evidence to create reasonable

suspicion of intoxication. Where, as here, the trial court’s ruling turned entirely on the credibility



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and demeanor of Norton, the sole witness, we afford almost total deference to the trial court’s

findings. See Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 89-90. Beyond the

evidence of the time and place of the events and of the manner by which Rothrock exited the parking

lot—evidence that we have previously held to be insufficient to create reasonable suspicion

of intoxication, see Foster, 29 S.W.3d at 294; Guzman, 240 S.W.3d at 368—the only evidence of

intoxication is Trooper Norton’s testimony that he observed Rothrock’s truck weaving in its lane.

                The State cites Arriaga v. State, No. 03-03-00097-CR, 2003 Tex. App. LEXIS 7445

(Tex. App.—Austin Aug. 29, 2003, no pet.) (mem. op., not designated for publication), as support

for its position that Norton’s observations were sufficient to create reasonable suspicion of

intoxication. The officer in Arriaga observed the defendant weaving within his lane and briefly

crossing the fog line. Id. at *2. However, in Arriaga, besides noting additional facts on which

a finding of probable cause could be based, we affirmed the trial court’s motion to suppress ruling in

favor of the State and against the defendant. Id. at *1, *9-10. There, it was the defendant’s

burden to show that the trial court had abused its discretion. Here, the trial court ruled in favor

of Rothrock, granting Rothrock’s motion to suppress, and it is the State’s burden to show an abuse of

discretion. Based on our standard of review, which requires us to defer to the trial court on issues of

witness credibility, we cannot conclude that the trial court abused its discretion in determining that

Trooper Norton did not have reasonable suspicion that Rothrock was intoxicated. Accordingly, we

overrule the State’s first issue.

                The State also argues that that Norton was justified in detaining Rothrock based

on reasonable suspicion that a traffic offense had occurred. See Armitage v. State, 637 S.W.2d



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936, 939 (Tex. Crim. App. 1982). According to the State, enhanced video evidence shows that

Trooper Norton had reasonable suspicion that Rothrock had committed a traffic violation by driving

on the improved shoulder. See Tex. Transp. Code Ann. § 545.058(b) (West 1999).

               An officer may legally initiate a detention if he has a reasonable basis for suspecting

that a person has committed a traffic offense. See Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim.

App. 1992). A traffic stop will be deemed valid as long as a reasonable officer in the same

circumstances could have stopped the car for the suspected offense. Whren v. United States,

517 U.S. 806, 808 (1996). There is, however, no requirement that an actual traffic offense be

committed, just that the officer reasonably believed that a violation was in progress. Davy v. State,

67 S.W.3d 382, 393 (Tex. App.—Waco 2001, no pet.); Gajewski v. State, 944 S.W.2d 450, 452

(Tex. App.—Houston [14th Dist.] 1997, no pet.).

               Here, the parties do not dispute that driving on the improved shoulder, absent

an approved purpose, is a traffic violation. See Tex. Transp. Code Ann. § 545.058(b). Rather,

the parties dispute whether Rothrock actually crossed onto the improved shoulder. Trooper Norton

testified that he observed Rothrock cross over the left fog line and drive on the improved shoulder

for several seconds as Rothrock entered the on-ramp to Highway 130. The State also submitted

video evidence which, it contends, corroborates Norton’s testimony. A review of the video,

however—even the “enhanced video”—makes resolution of this factual dispute far from clear. Even

on the enhanced version of the video, it is impossible to determine with certainty whether the

wheels of Rothrock’s vehicle actually crossed the left fog line or not. Based on this inconclusive




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video evidence, the trial court, as sole fact-finder, could have reasonably concluded that there was

no traffic violation. See Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

               Beyond the inconclusive video evidence, the only evidence that Rothrock committed

a traffic violation is Norton’s testimony that he observed Rothrock’s vehicle cross the left fog line.

As noted, our standard of review requires that we defer to the trial court on issues of witness

credibility. Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 89-90. On this record, we

cannot conclude that the trial court abused its discretion in determining that Trooper Norton did not

have reasonable suspicion that Rothrock had committed a traffic violation. See Oles, 993 S.W.2d

at 106. Accordingly, we overrule the State’s second issue.

               Having overruled the State’s issues, we affirm the trial court order granting

Rothrock’s motion to suppress.




                                               __________________________________________

                                               G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 5, 2010

Do Not Publish




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