                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


  THE STATE OF TEXAS,                               §
                                                                    No. 08-16-00087-CR
                        Appellant,                  §
                                                                       Appeal from the
  v.                                                §
                                                              County Criminal Court at Law #2
  JORGE ARTURO ESPINOZA,                            §
                                                                  of El Paso County, Texas
                        Appellee.                   §
                                                                     (TC# 20150C10006)
                                                    §


                                     DISSENTING OPINION

       Because I disagree with the majority’s conclusion that the State met its burden of proof to

present facts supporting a reasonable suspicion that Appellee Jorge Espinoza may be driving while

intoxicated at the time of the traffic stop that is at issue in this case, I write separately. Although

the majority does not reach the other two issues, I am also not convinced the State established

reasonable suspicion to stop Espinoza for failure to maintain a single lane or to signal a lane

change. Contrary to the majority, I would conclude that the trial court did not err in granting

Espinoza’s motion to suppress and would affirm the trial court’s order. Respectfully, I dissent.

                                                 DWI

       The majority concludes that the State presented facts supporting a reasonable suspicion
that Espinoza may be driving while intoxicated at the time the stop was made. On review of the

record, I disagree that the State met its burden to show that the officer had sufficient information

required for a warrantless traffic stop. “Reasonable suspicion requires more than a hunch; it exists

only when an officer has specific, articulable facts that, taken together with reasonable inferences

from those facts, would lead the officer to reasonably conclude that the person detained is, has

been, or soon will be, engaging in criminal activity.” Delafuente v. State, 414 S.W.3d 173, 177

(Tex.Crim.App. 2013). A reasonable suspicion determination is objectively made by considering

the totality of the circumstances. Id.

        To summarize, our record includes Officer Wilkinson’s affidavit prepared on the morning

of the arrest, his testimony at the suppression hearing, and the video recording of the traffic stop

as seen from Officer Wilkinson’s patrol car. In his affidavit, Wilkinson described that he had

observed Espinoza’s vehicle straddle the right lane marker, and he began to follow. He then

described that he observed the vehicle continue to straddle the lane marker between the middle

and right lane of travel. Articulating no further details, he described that he then initiated a traffic

stop and met with the driver.

        At the hearing, Wilkinson testified Espinoza’s Jeep caught his attention when he observed

him make a U-turn and then move over to the right lane of travel and then back to the middle lane

without signaling. Officer Wilkinson also testified that he stopped Espinoza in an area with

establishments that serve alcohol until 2 a.m. Giving further details, Wilkinson testified he saw

Espinoza’s vehicle, “kind of drift over and drive . . . on the line and then kind of drift back and –

he did that a few times.” On deciding to pull him over, he stated he had observed Espinoza, “enter

the right lane again and then back to the middle lane without signaling, and then I initiated a traffic


                                                   2
stop.”

         On cross-examination, defense counsel played the dashcam video from Wilkinson’s patrol

vehicle and intermittently paused to ask questions. Defense counsel asked Wilkinson to point out

each time he saw a traffic violation.1 As Wilkinson responded, he described seeing Espinoza,

“straddling the lanes right there,” which he explained meant he was “driving on the lane markers.”

Wilkinson added, however, that when he observed the “straddling,” it was not unsafe and, as

shown on the video, it did not meet the definition on which he had been trained. Straddling, he

explained, was defined by the National Highway Traffic Safety Administration (NHTSA) as a

vehicle moving straight ahead with the center or lane marker between the left-hand and right-hand

wheels. Although Wilkinson described Espinoza’s tire as being wider than the lane marker, and

thus, it was “technically” in the other lane, he agreed that what was seen on the video differed from

the NHTSA definition.

         Wilkinson also conceded that Espinoza had not actually changed lanes at the point in the

video which he had described as lane straddling. When asked to continue and identify other

violations, Wilkinson pointed out in the video, “[r]ight there, it looked like real brief – right there,

he touched [the lane divider].” On further questioning, however, Wilkinson agreed that even

though Espinoza, “began on the lane, the marker,” he drove “practically, yes, he is in his lane of

travel.” After further viewing, Wilkinson then said, “[h]e’s actually over the line now,” but also

added that no one else was on the road and Espinoza was not in danger of hitting anyone.

Wilkinson asserted he had identified two violations at the beginning concerning failure to signal


1
  Both the trial court’s Findings of Fact and Conclusions of Law and the State’s Brief refer to timestamps from the
dashcam video. Although we, too, can view video timestamps, our reporter’s record does not link witness
testimony to any timestamps.

                                                         3
lane changes. First, “he entered the other lane of travel a little bit and then came back;” and,

second, “[h]e moved over – whether he drifted or whatever – he moved over to the right lane a

little bit, entered the right lane, with the right side of his car, and then came back over without

signaling.” Clarifying, Wilkinson testified that he agreed that no signaling is needed if he’s not

changing lanes.

       Officer Wilkinson testified that he had been a peace officer with the El Paso Police

Department for nine and a half years and was assigned to the DWI Task Force. Without providing

details, he also testified that he was SFST certified, had taken numerous courses on identifying

intoxicated drivers, and had attended numerous training sessions related to impaired drivers.

When first asked whether he had also suspected intoxication before initiating the stop, Wilkinson

replied, “I don’t recall having a hunch. I just remember pulling him over for the violation.”

Later, on redirect, Wilkinson testified differently stating he had reasonable suspicion to believe

that Espinoza was intoxicated at the moment when he turned on his lights to initiate his stop.

       When read in its entirety, Wilkinson’s testimony was equivocal on whether he initiated a

traffic stop based on a suspicion of DWI based on facts and reasonable inferences. When asked

whether moving from one lane and back without signaling indicated a sign of intoxication,

Wilkinson responded “no.” Then, when asked whether “drifting from lane to lane,” in and of

itself, would indicate a sign of intoxication, Wilkinson responded “[i]t’s a cue, based on my

experience, that—over the years, its’s not normal behavior for someone to kind of straddle the lane

and come back. Especially the time of day, the area, it’s a cue, yes.” The area, he further

explained, was well-known “for people to go and get drinks.”           With this answer, Officer

Wilkinson likely provided sufficient information to support having suspicion of intoxication. On


                                                4
cross-examination, however, he went on to say that he had not formed “a hunch” of impairment,

despite years of training, and he described the area not for assessing the totality of circumstances,

but rather, as a response to the prosecutor asking where he was at when he initiated his stop.

       Despite his training and experience, Officer Wilkinson did not clearly articulate having a

suspicion of DWI as a reason he initiated the traffic stop and, on occasion, said otherwise. Officer

Wilkinson’s testimony left such a light impression with the trial court that the offense itself is not

even mentioned in the court’s findings of fact and conclusions of law. Indeed, the court concluded

that Espinoza’s vehicle did not swerve or veer, but instead moved in a slow graduated manner

before moving in a similar manner back to the left, and only the vehicle’s tires touched the white

line marker on the street.

       On appellate review, DWI is treated as having been implicitly rejected as a justification for

the stop given this offense is not mentioned in the court’s ruling. See State v. Alderete, 314

S.W.3d 469, 473 (Tex.App.--El Paso 2010, pet. ref’d). Following that rejection, I would therefore

imply findings regarding Wilkinson’s testimony that are consistent with the trial court’s ruling and

supported by the record. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Given

Officer Wilkinson’s equivocal testimony, there is ample ground to believe that the trial court found

his testimony lacking in detail or not credible.       See Guzman v. State, 955 S.W.2d 85, 89

(Tex.Crim.App. 1997)(credibility and demeanor determinations must be given almost total

deference).

       Finally, when determining whether an officer had reasonable suspicion to conduct a traffic

stop for DWI, we should consider the time of day and the area in which a traffic stop occurs, in

addition to testimony from the officer about the driving pattern of the vehicle under the totality of


                                                  5
the circumstances. See Curtis v. State, 238 S.W.3d 376, 379–80 (Tex.Crim.App. 2007); Alderete,

314 S.W.3d at 473. However, I find Curtis and Alderete distinguishable. In Curtis, because the

trial court had ruled in favor of the prosecution, historical facts and inferences on review were

supportive of an officer engaging in a traffic stop based on reasonable suspicion of a driver

committing a DWI offense. Id., at 381. In Alderete, we reversed a trial court’s suppression

ruling because the officer testified the driver “was stopped not because of a violation of the traffic

code, but based on suspicion of intoxication . . . .” State v. Alderete, 314 S.W.3d 469, 473

(Tex.App.--El Paso 2010, pet. ref'd). Thus, Alderete included direct testimony from the officer

that he had suspected impairment of the driver as a basis for the initial stop.

       Here, I would conclude that the trial court’s ruling does not fall outside the zone of

reasonable disagreement considering that Officer Wilkinson testified inconsistently about having

formed a reasonable suspicion to believe that Espinoza was impaired while driving. Contrary to

the majority opinion, I would afford greater deference to the trial court’s determination of historical

facts to the extent that a determination of reasonable suspicion depends to some extent on Officer

Wilkinson’s credibility in articulating his observations and reasonable inferences. On review, I

would hold that the trial court did not abuse its discretion in implicitly rejecting the State’s theory

that Wilkinson’s testimony supported reasonable suspicion of a DWI offense. Accordingly, I

would overrule the State’s first and fourth issue.

                                 Failure to Maintain a Single Lane

       I am also not convinced that Officer Wilkinson had reasonable suspicion to stop Espinoza

for failure to maintain a single lane. In its second issue, the State argues there is indisputable

visual evidence that an officer in Wilkinson’s position would have been justified in detaining


                                                  6
Espinoza for failing to maintain a single lane. The State concedes in its brief that Officer

Wilkinson testified he had initiated his traffic stop not for a failure to maintain a single lane

violation, but for a failure to signal his intention to make a lane change. Rejecting the lane

violation, the trial court’s findings state, “[t]he video . . . does not show that the wheels crossed

completely over to the right lane, as stated by the officer, and he further stated that these

movements were not unsafe and posed no other problems.”

       Texas Transportation Code Section 545.060, in pertinent part, states that “an operator on a

roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as

practical entirely within a single lane; and (2) may not move from the lane unless that movement

can be made safely.” TEX.TRANSP.CODE ANN. § 545.060(a)(1–2). In Leming v. State, the Court

of Criminal Appeals construed the statute for the first time and held it imposed two independent

requirements. 493 S.W.3d 552, 559 (Tex.Crim.App. 2016)(plur. op.). As Leming found, the

statute imposes a requirement aspect (to maintain a single lane as far as is practical) and a

prohibition aspect (do not change lanes unless it is safe to do so). Id. Because the two aspects

are joined by the conjunction “and,” Leming held that either statutory prohibition provides a means

of committing the same offense. Id. “[I]t is an offense to change marked lanes when it is unsafe

to do so; but it is also an independent offense to fail to remain entirely within a marked lane of

traffic so long as it remains practical to do so, regardless of whether the deviation from the marked

lane is, under the particular circumstances, unsafe.” Id., at 559–60. Lower court decisions that

interpreted the statute singularly, Atkinson v. State, 848 S.W.2d 813 (Tex.App.--Houston [14th

Dist.] 1993, pet. ref’d) and Hernandez v. State, 983 S.W.2d 867 (Tex.App.--Austin 1998, pet.

ref’d), respectively, were expressly rejected by Leming. Id., at 559.


                                                 7
       Like this case, the facts in Leming concerned the first prohibition only—whether the driver

failed to drive as nearly as practical entirely within a single lane of traffic. Id., at 561. In Leming,

the officer could only testify that the “tires were on the stripes,” and the video established that

much—but did not clearly show the vehicle entered the next lane. Id. In reviewing whether

reasonable suspicion had been met, Leming concluded it was not necessary to decide whether

driving on the divider stripes constituted a failure to stay “entirely within” a designated lane. Id.

“For a peace officer to stop a motorist to investigate a traffic infraction, as is the case with any

investigative stop, proof of the actual commission of the offense is not a requisite.” Id., (quoting

Drago v. State, 553 S.W.2d 375, 377 (Tex.Crim.App. 1977)). Instead, Leming focused on a

review of the totality of the circumstances, which in that case included not only the testimony of

the officer but additionally included testimony from a concerned citizen. Id.

       In Leming, the citizen involved had originally prompted the investigation by reporting that

a vehicle on the roadway was “swerving from side to side.” Id., at 554. When the arresting

officer first observed the defendant’s vehicle, he saw that it was traveling thirteen miles per hour

below the posted speed limit and that the driver “slowed down more and more.” Id. The vehicle

then began to swerve to the left, came “uncomfortably close” to the street curb, drifted back to the

right, and came “precariously close” to the curb at least twice more before the officer pulled the

vehicle over after following it for several miles. Id., at 554, 563. The officer justified his stop

pursuant to the community caretaking function. Id. Thus, the record in Leming showed that the

officer involved, “knew from personal observation that [the driver] had several times at least come

very close to entering the adjacent lane—even if he could not quite tell whether [he] had actually

entered it—and he knew that [the citizen] had also observed [the driver’s vehicle] to be ‘swerving’


                                                   8
even before [the officer] arrived on the scene.” [Emphasis added]. Id., at 561. Under the

totality of the circumstances, Leming concluded the record justified a temporary detention to

investigate whether the driver involved failed to remain in his dedicated lane of traffic as far it was

practical to do so under the circumstances. Id. Thus, in analyzing the first prohibition (a

requirement to practically remain in a single lane), Leming reiterated it mattered not whether the

driver’s failure to remain in his lane was additionally unsafe under the circumstances. Id.

        Here, in deciding whether reasonable suspicion of a lane violation supported the temporary

detention, the trial court considered Officer Wilkinson’s testimony, viewed the dashcam video,

and read the affidavit accompanying the search warrant. In conclusion of law four, the trial court

stated, “the defendant’s vehicle did not swerve or veer, but instead moved to the right in a slow,

graduated manner before moving in a similar manner back to the left.” Moreover, “[o]nly the

vehicle’s tires touched the white lane marker on the street.” More specifically, in rejecting the

lane violation as a basis for the stop, the trial court noted the officer testified he observed violations

at “2:10:47, 2:10:53, and 2:10:54,” for his determination to stop Espinoza. Reaching a contrary

conclusion from the officer, the trial court stated:

        The video, on the contrary, does not show that the wheels crossed completely over
        to the right lane, as stated by the officer, and he further stated that these movements
        were not unsafe and posed no other problems. The traffic was light and no other
        vehicles took evasive action to avoid the defendant’s vehicle, nor was there any
        indication that the weaving was part of a more erratic behavior or was unsafe[.]

        Thus, in addressing both prohibitions of the statute, the trial court found: (1) that the video

did not show that the wheels crossed completely over to the right lane as stated by the officer; and

(2) that movements seen were not unsafe and posed no other problems. The trial court concluded

that Espinoza’s vehicle moved in a slow, graduated manner before moving in a similar manner


                                                    9
back to the left, and only the vehicle’s tires touched the white lane marker on the street. The trial

court further concluded that the officer did not have reasonable suspicion to stop the defendant and

further concluded that the stop was unlawful.

       Viewing the record in the light most favorable to the trial court and deferring to the court’s

determination of historical facts, I would hold that the trial court did not abuse its discretion in

finding that Wilkinson had unlawfully detained Espinoza for a suspected violation of Section

545.060. See TEX.TRANSP.CODE ANN. § 545.060(a)(1–2). Both Officer Wilkinson’s testimony

and the dashcam video support the trial court’s finding that Espinoza’s vehicle mostly remained

within the marked lane in which he was traveling and did not make unsafe movements. Unlike

Leming, Espinoza did not swerve dangerously from left to right, did not come close to striking a

curb, and was not traveling well below the speed limit. Officer Wilkinson testified no one else

was on the road and Espinoza was not in danger of hitting anyone.

       Unlike Leming, a concerned citizen did not call in and report additional swerving unseen

by the officer or unrecorded on video. Officer Wilkinson did not stop Espinoza pursuant to the

community caretaking function, like the officer in Leming did, but originally testified that it was

because of a purported signal violation. See Leming, 493 S.W.3d at 554. Although Officer

Wilkinson did not testify how long he followed Espinoza before pulling him over, the time stamp

of the video clearly shows it was under a minute—far less than the “several miles” and “several

minutes” of time and distance reported by the arresting officer in Leming. See id., at 554.

       Based on the totality of the circumstances, I would hold that the trial court did not err by

determining the stop lacked reasonable suspicion for failure to maintain a single lane. The trial

court’s findings of historical facts—the tire’s touch of the lane marker coupled with moving to the


                                                 10
right in a slow, graduated manner before moving in a similar manner back to the left—without

other indicators of criminal activity, were not enough to justify the stop for a violation of failing

to maintain a single lane. I would overrule the State’s second issue.

                                        Lane Change Violation

        Finally, although the majority also does not reach this issue in its opinion, I would hold

that Officer Wilkinson lacked reasonable suspicion to stop Espinoza for failure to signal a lane

change. In its third issue, the State argues Wilkinson had sufficient reasonable suspicion to stop

Espinoza as he testified he observed Espinoza’s right front tire cross over the white lane marker in

violation of Texas Transportation Code Section 545.104, and his testimony was supported by the

video evidence.

        Texas Transportation Code Section 545.104(a), states in pertinent part, “[a]n operator shall

use the turn signal . . . to indicate an intention to turn, change lanes, or start from a parked position.”

[Emphasis added]. See TEX.TRANSP.CODE ANN. § 545.104(a). Thus, from the plain language of

the statute, the driver’s intention to change lanes is required for Section 545.104 to apply. See,

e.g., Power v. State, No. 13-05-693-CR, 2006 WL 2516525, at *2–3 (Tex.App.--Corpus Christi

July 27, 2006, no pet.)(mem. op., not designated for publication); State v. Griffin, No. 04-12-

00192-CR, 2003 WL 21018319, at *2 (Tex.App.--San Antonio May 7, 2003, no pet.)(not

designated for publication). Weaving, such that only one or two of the vehicle’s tires cross over

the lane marker, does not constitute a lane change under Section 545.104 when the driver did not

intend to change lanes. See, e.g., Power, 2006 WL 2516525, at *2–3 (holding that an officer did

not have reasonable suspicion to stop a driver for failure to signal a lane change when the driver

never changed lanes, but instead, the driver’s two right tires only drifted into the outside lane and


                                                    11
back). As recently confirmed by the Court of Criminal Appeals, “[c]riminal statutes outside the

penal code must be construed strictly, with any doubt resolved in favor of the accused.” State v.

Cortez, 543 S.W.3d 198, 206 (Tex.Crim.App. 2018)(quoting Stevenson v. State, 499 S.W.3d 842,

849 (Tex.Crim.App. 2016)).

        Here, the trial court’s factual findings state that Wilkinson testified he observed Espinoza

drift from lane to lane approximately two times and failed to signal his lane change. Moreover,

its conclusions of law state that Wilkinson identified violations he observed at 2:10:47, 2:10:53,

and 2:10:54. After viewing the video, however, the trial court concluded that the video did not

support the officer’s testimony as it did not show that the wheels crossed completely over to the

right lane as stated by the officer.

        I would hold that the record supports the trial court’s findings as there is nothing to indicate

that Espinoza intended to change lanes nor ever executed a lane change until after the officer turned

on his emergency lights to initiate a traffic stop. Moreover, as stated earlier, Officer Wilkinson’s

testimony on the issue was equivocal and the State failed to elicit sufficient facts to support an

objective determination of a signal violation. In fact, Wilkinson admitted that a driver does not

need to use a turn signal if he does not intend to change lanes. On this record, I would hold that

the trial court did not abuse its discretion in concluding that Officer Wilkinson was not justified in

stopping Espinoza for suspicion of violating Section 545.104. See Power, 2006 WL 2516525, at

*2–3; Griffin, 2003 WL 21018319, at *2. I would overrule the State’s third issue.

                                             Conclusion

        In sum, I do not believe that Officer Wilkinson had reasonable suspicion to stop Espinoza

for a traffic offense or for DWI. I would overrule the State’s issues and affirm the trial court’s


                                                  12
decision granting Espinoza’s motion to suppress, and therefore I respectfully dissent from the

majority in this case.



November 30, 2018
                                            GINA M. PALAFOX, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.




                                              13
