
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-09-00584-CR


Danny Lee Yeakley, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-08-493, HONORABLE WILLIAM HENRY, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		A jury convicted appellant Danny Lee Yeakley of the felony offense of driving while
intoxicated.  See Tex. Penal Code Ann. § 49.04(a) (West 2003), § 49.09(b)(2) (West Supp. 2010).
Punishment, enhanced by two prior felony convictions for the offenses of theft and driving while
intoxicated, was assessed at 27 years' imprisonment.  In two issues on appeal, Yeakley asserts that
the district court abused its discretion by denying his motion to suppress and erred by failing to
receive Yeakley's plea to the State's enhancement allegations.  We will affirm the judgment.

BACKGROUND
		At the hearing on the motion to suppress, the district court heard evidence that on
June 6, 2008, at approximately 6:40 p.m., Officer Jason Scott of the San Marcos Police Department
was on patrol duty and headed southbound on IH-35 when he observed a vehicle in the right lane of
traffic "move[] partway over into the center lane" for what Scott perceived to be "a significant
amount of distance," specifically "several car lengths."  Scott did not observe the vehicle signal a
lane change.  When asked to describe the vehicle's position in the two lanes, Scott testified, "The
two left wheels of the vehicle were crossed over into the center lane several feet and the vehicle was
mostly in the right lane and probably about a quarter of the vehicle was in the center lane."  Scott
also observed that there were two other vehicles immediately around the suspect vehicle--"a vehicle
behind it" and a vehicle "on the left side that was approaching or was driving alongside me and I
was in the center lane."  Scott continued, "I was driving normally.  And as I approached that vehicle,
I had to use my brake to keep from getting too close to that vehicle."  Scott believed that if he had
not braked, "I could have potentially struck the vehicle."
		When asked to characterize the vehicle's movement into the center lane, Scott
testified, "I believe it was a dangerous movement based upon the time of day and the traffic flow
and the fact that I had to adjust my driving due to the vehicle being in my lane."  Scott elaborated,
"[T]here was traffic on the roadway; the vehicles around me, I know, were traveling pretty much at
. . . the posted speed limit; I had to adjust my speed . . . in order to prevent approaching the vehicle
at an unsafe distance."  Scott also observed the vehicle to the right of him "already being cautious"
because of the "suspect vehicle's movements."  Scott added, "They had already started to slow down
as I was moving forward."
		Scott's patrol vehicle was equipped with a video camera that recorded the
suspect vehicle's movements.  A DVD of the recording was admitted into evidence and played
for the district court.  In the video, the suspect vehicle can be seen drifting into the center lane for
approximately eight seconds and then returning to the right lane.
		After "observ[ing] the vehicle a little bit longer," Scott activated his overhead lights
and initiated a traffic stop.  Scott subsequently identified Yeakley as the driver of the vehicle.  Scott
testified that the basis for the stop was his belief that Yeakley had committed the offense of "failure
to maintain a single lane."  See Tex. Transp. Code Ann. § 545.060(a) (West 1999). 
		On cross-examination, Scott testified that other than his vehicle and the one
immediately behind Yeakley's vehicle, he observed no other vehicle take any evasive action in
response to Yeakley's movement into the center lane.  Scott estimated that he and the other cars
around him were traveling at approximately the posted speed limit of 70 miles per hour, although
Scott estimated that Yeakley's vehicle was traveling approximately five to ten miles per hour below
the speed limit.  Scott agreed with defense counsel's characterization of Yeakley's movement into
the center lane as more of a slow "drift" than an abrupt "swerve," and he also agreed with defense
counsel's characterization of Yeakley's movement as more of a "potentially" unsafe condition than
an "actual" unsafe condition.  However, according to Scott, this was only because his vehicle and
the other vehicle were able to apply their brakes in order to maintain a safe distance behind
Yeakley's vehicle.
		Following Scott's testimony, defense counsel argued that there was no basis for
the traffic stop because Yeakley's movement into the center lane did not create an actual unsafe
condition.  See Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.--Austin 1998, pet. ref'd)
(holding that violation of section 545.060 of transportation code occurs "only when a vehicle fails to
stay within its lane and such movement is not safe or is not made safely").  The district court denied
the motion to suppress, and the case proceeded to trial.
		At trial, in addition to the above evidence, the jury heard further testimony from
Scott regarding his observations of Yeakley following the traffic stop.  Scott testified that upon
making contact with Yeakley, he "could smell the odor of alcohol coming from the vehicle," "saw
that his eyes were glassy and bloodshot," and observed that his "speech was somewhat slurred."
When Scott asked Yeakley if he had been drinking, Yeakley initially denied having had anything
to drink.  Scott then asked Yeakley to exit the vehicle.  As Yeakley did so and Scott continued
questioning him, Scott "could tell that the odor of alcohol was not coming from inside the vehicle
but from Mr. Yeakley."  Scott also observed that Yeakley was "a little unsteady on his feet" and
"very erratic in his movement."  Scott again asked Yeakley if he had been drinking, and this time
Yeakley admitted to having drank "two beers."  Scott testified that he then administered the
horizontal gaze nystagmus test on Yeakley and observed six out of six possible "clues" indicating
intoxication.  At that point, Scott decided to arrest Yeakley for driving while intoxicated.
		The State's only other witness was Officer Jesse Saavedra of the San Marcos
Police Department, who inventoried and impounded Yeakley's vehicle following the arrest. 
Saavedra testified that inside the vehicle, he found an open can of beer that was "cool to the touch"
and an ice chest that contained three or four unopened cans of beer.  Also admitted into evidence for
the jury's consideration were DVD recordings of the traffic stop, Yeakley's transport to the police
station, and statements Yeakley had made to the police while at the station.
		The jury found Yeakley guilty of the offense of driving while intoxicated, and
the case proceeded to punishment.  At the beginning of the punishment hearing, the State alleged
for enhancement purposes a prior conviction for felony driving while intoxicated and two prior
convictions for felony theft. (1)  The enhancement allegations were read to the jury as required by
article 36.01 of the code of criminal procedure.  However, contrary to article 36.01, the district court
immediately thereafter proceeded to allow the State to present its evidence in support of the
allegations, without first receiving Yeakley's plea to the allegations.  Yeakley did not object to this
procedure at any point during or after trial.  The jury subsequently found the enhancement allegations
to be true and assessed punishment at 27 years' imprisonment.  This appeal followed.

ANALYSIS
Motion to suppress
		In his first issue, Yeakley asserts that his motion to suppress should have been granted
because his failure to maintain a single lane of traffic did not create an actual unsafe condition. 
Thus, in Yeakley's view, there was no legal basis for the traffic stop.
		A trial court's ruling on a motion to suppress is reviewed on appeal for abuse
of discretion.  State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).  The trial court is given
almost complete deference in its determination of historical facts, especially if those are based on
an assessment of credibility and demeanor.  State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim.
App. 2008).  The same deference is afforded the trial court with respect to its rulings on application
of the law to questions of fact and to mixed questions of law and fact, if resolution of those questions
depends on an evaluation of credibility and demeanor.  Montanez v. State, 195 S.W.3d 101, 108-09
(Tex. Crim. App. 2006).  However, for mixed questions of law and fact that do not fall within that
category, a reviewing court conducts a de novo review.  Amador v. State, 221 S.W.3d 666, 673
(Tex. Crim. App. 2007).
		The trial judge is the exclusive fact-finder at the suppression hearing.  State v. Ross,
32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  When the trial court does not make express findings
of fact, an appellate court must view the evidence in the light most favorable to the trial court's
ruling, assuming that it made any implicit findings of fact that are supported by the record.  Id.  An
appellate court will sustain the trial court's decision if it concludes that the decision is correct on any
theory of law applicable to the case.  Id. at 855-56.
		An officer may initiate a traffic stop if he reasonably suspects that the driver
has committed a traffic violation.  Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). 
Reasonable suspicion exists if the officer has specific articulable facts that, when combined with
rational inferences from those facts, would lead him to reasonably suspect that a particular
person has, or soon will be, engaged in criminal activity.  Neal v. State, 256 S.W.3d 264, 280
(Tex. Crim. App. 2008); Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).  In making
this determination, we consider the totality of the circumstances.  Ford, 158 S.W.3d at 492; Garcia,
43 S.W.3d at 530.
		Here, the alleged traffic violation was the failure to maintain a single lane.  See
Tex. Transp. Code Ann. § 545.060(a).  A person commits this offense when his "vehicle fails to
stay within its lane and such movement is not safe or is not made safely."  Hernandez, 983 S.W.2d
at 871.  If the vehicle only fails to stay within its lane, without that movement being unsafe to
one's self or another, no violation exists.  See, e.g., Eichler v. State, 117 S.W.3d 897, 900-01
(Tex. App.--Houston [14th Dist.] 2003, no pet.); State v. Cerny, 28 S.W.3d 796, 800-01
(Tex. App.--Corpus Christi 2000, no pet.); Aviles v. State, 23 S.W.3d 74, 78 (Tex. App.--Houston
[14th Dist.] 2000, pet. ref'd); Ehrhart v. State, 9 S.W.3d 929, 930 (Tex. App.--Beaumont 2000,
no pet.); Hernandez, 983 S.W.2d at 871-72; State v. Tarvin, 972 S.W.2d 910, 912
(Tex. App.--Waco 1998, pet. ref'd).  Thus, in order to uphold a traffic stop based solely on a
violation of section 545.060, the record must contain specific, articulable facts that, when combined
with reasonable inferences from those facts, would lead the detaining officer to reasonably suspect
that the failure to maintain a single lane was unsafe under the circumstances.
		There are such facts in this case.  Officer Scott testified that the violation occurred
at approximately 6:40 p.m. on IH-35 in San Marcos.  According to Scott, there was other traffic on
the highway at that time, including two other vehicles that were near Yeakley's vehicle.  The posted
speed limit was 70 miles per hour, and Scott testified that he and the other vehicles around him were
traveling at approximately that speed.  Yeakley's vehicle, however, was traveling approximately five
to ten miles per hour below the posted speed limit.  When Yeakley's vehicle drifted into the center
lane for what Scott perceived to be "a significant amount of distance," specifically "several car
lengths," no lane change was signaled and Scott had to "adjust [his] speed . . . in order to prevent
approaching the vehicle at an unsafe distance."  Scott further testified that if he had not applied his
brakes, he "could have potentially struck the vehicle."  Additionally, according to Scott, the vehicle
immediately behind Yeakley's vehicle was "already being cautious" because of the "suspect
vehicle's movements."  Scott recounted, "They had already started to slow down as I was moving
forward."  Scott's testimony is confirmed by the video recording of the traffic stop, which
shows Yeakley's vehicle drift into the center lane of traffic for approximately eight seconds.  Scott
summarized why he believed Yeakley's movement was unsafe:  "I believe it was a dangerous
movement based upon the time of day and the traffic flow and the fact that I had to adjust my driving
due to the vehicle being in my lane."  From the totality of the above specific, articulable facts, Scott
could have reasonably inferred that Yeakley's failure to maintain a single lane was unsafe under
the circumstances.  That Scott and the other driver were able to avoid Yeakley's vehicle by applying
their brakes and "being cautious" does not render Yeakley's movement safe.  See Cook v. State,
63 S.W.3d 924, 928 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd) (concluding that officer is
not required to wait to initiate traffic stop "until appellant placed himself or others in immediate peril
as a result of his erratic driving").  We cannot conclude on this record that the district court abused
its discretion in denying Yeakley's motion to suppress.
		We overrule Yeakley's first issue.

Failure to receive plea
		In his second issue, Yeakley asserts that the evidence supporting the enhancement
allegations was not properly before the jury because the district court failed to receive Yeakley's
plea to the allegations as required by statute.  See Tex. Code Crim. Proc. Ann. art. 36.01(a)
(West 2007).  The violation of this statute, Yeakley contends, requires reversal and a new
punishment hearing.
		It is well settled that the reading of the enhancement allegations and the entry of
the defendant's plea thereto are mandatory, and that no issue is joined between the State and the
defendant with respect to the defendant's prior criminal record if this is not done.  Turner v. State,
897 S.W.2d 786, 788 (Tex. Crim. App. 1995); Mendez v. State, 212 S.W.3d 382, 388
(Tex. App.--Austin 2006, pet. ref'd).  "The purpose of this rule is 'to inform the accused of the
charges against him and to inform the jury of the precise terms of the particular charge against
the accused.'"  Turner, 897 S.W.2d at 788 (quoting Warren v. State, 693 S.W.2d 414, 415 (1985)).
Thus, "[i]t is error to permit the jury to consider enhancement evidence admitted before the entry
of the defendant's plea."  Mendez, 212 S.W.3d at 388.  When such an error is discovered, "the State
can cure it by reading the enhancement paragraph, having the defendant plead to it, and reintroducing
the evidence."  Turner, 897 S.W.2d at 789 n.5.
		In this case, the failure to receive Yeakley's plea to the enhancement allegations
was never cured.  The State, while acknowledging that there was not "complete compliance" with
article 36.01, argues that Yeakley failed to preserve this issue for review by not objecting to the error
at any point during the proceedings or raising it in his motion for new trial.  Yeakley concedes that
he did not bring the error to the attention of the district court but claims that the failure to comply
with article 36.01 "is not subject to procedural default for failing to object at trial."
		To preserve a complaint for appellate review, a party must have presented to the
trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.
Tex. R. App. P. 33.1(a).  It is well established that almost every right, constitutional and statutory,
may be waived by failing to object.  Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986);
Powell v. State, 252 S.W.3d 742, 744 (Tex. App.--Houston [1st Dist.] 2008, no pet.).
		However, in Turner v. State, this Court concluded that a violation of article 36.01
may be raised for the first time on appeal.  See 860 S.W.2d 147, 151 (Tex. App.--Austin 1993),
rev'd on other grounds, 897 S.W.2d 786 (Tex. Crim. App. 1995).  In that case, the defendant was
convicted of the misdemeanor offense of driving with a suspended license.  Id. at 149.  Punishment
was enhanced by a prior conviction for the same offense.  Id.  The State neglected to read the
enhancement portion of the information to the jury, and the defendant did not plead to the allegation.
Id. at 150.  On appeal, the State argued that because the defendant "did not object, move for a
mistrial, move for a new trial, or otherwise raise in the county court the issue of her failure to plead
to the enhancement allegation," she had waived the error.  Id.  This Court disagreed, concluding that
"the reading of the charging instrument is a right that must be implemented in the absence of an
express waiver."  Id. at 151.  This Court thus held that "the failure to comply with article 36.01(a)(1)
at the punishment stage was not waived by appellant's silence in the trial court."  Id.  This Court then
went on to find that the error was harmless and affirmed the conviction.  Id.
		On discretionary review, the court of criminal appeals, without disputing this Court's
holding that a violation of article 36.01 could be raised for the first time on appeal, addressed
the issue of whether such a violation was subject to a harmless-error analysis.  Turner, 897 S.W.2d
at 787-88.  The court concluded that a harm analysis was inapplicable and that the failure of the State
to "strictly comply" with article 36.01 constitutes reversible error, without regard to harm. (2) Id.
at 789.  Relying on the decision in Turner, Yeakley argues that no objection to the article 36.01
violation was required.
		Yeakley's reliance on Turner is misplaced.  In light of cases decided subsequent to
Turner, we can no longer say that an article 36.01 violation may be raised for the first time on
appeal.  See, e.g., Cantu v. State, 939 S.W.2d 627, 646 (Tex. Crim. App. 1997) (charge read and plea
entered outside jury's presence in violation of article 36.01; court held any error harmless and
observed that appellant waived any error by failing to object during trial); Lee v. State, 239 S.W.3d
873, 876-77 (Tex. App.--Waco 2007, pet. ref'd) (trial court failed to enter defendant's plea in
violation of article 36.01; court held that defendant failed to preserve his complaint for appellate
review by not objecting during trial and by not "filing a motion for new trial, bill of exception, or
motion to arrest judgment" after trial); Hardin v. State, 951 S.W.2d 208, 211 (Tex. App.--Houston
[14th Dist.] 1997, no pet.) (State violated article 36.01 by reading enhancement paragraphs at
commencement of guilt/innocence phase of trial rather than waiting until punishment; defendant
failed to object; court held that "[a]bsent an objection, any violation of article 36.01 is waived"). (3)
 
		This Court has also issued an opinion subsequent to Turner that implies that the
failure to enter the defendant's plea to the enhancement allegations may no longer be raised for
the first time on appeal.  In Mendez v. State, the State presented its enhancement evidence prior to
the defendant entering his plea to the allegations.  212 S.W.3d at 387.  After the State rested, the
defendant brought the error to the trial court's attention and asked for a "directed verdict . . . that
this enhancement provision is not applicable."  Id.  The trial court overruled the objection but
required the State to read the enhancement allegations and the defendant to enter his plea of "not
true" before the jury.  Id. at 387-88.  However, the trial court did not require the State to reoffer its
evidence.  Id. at 388.
		On appeal, Mendez contended that the enhancement evidence was not properly
before the jury because the State had failed to reoffer the evidence subsequent to Mendez's plea.  Id.
In response, the State argued that the defendant failed to preserve error by not objecting at the time
the evidence was offered.  Id.  This Court disagreed, holding that "an objection at any point during
the penalty stage is sufficient to preserve the error."  Id.  This Court reasoned that "[t]he failure to
timely read the enhancement allegations and take Mendez's plea was brought to the attention of the
trial court and the State at a time when it was possible to correct the error.  At that point, the State
was obligated to either abandon the enhancement allegations or to correct the error" by "reopen[ing]
its case, read[ing] the enhancement allegations, tak[ing] the plea, and reintroduc[ing] or stipulat[ing]
the previously introduced evidence."  Id. (citing Welch v. State, 645 S.W.2d 284, 285 (Tex. Crim.
App. 1983)).  This Court concluded that "Mendez did all that was required to preserve this error for
appeal and that no further objection was necessary."  Id. (emphasis added). 
		The clear implication of Mendez and the other post-Turner cases cited above is
that defendants are not excused from preserving error at the trial court when there is a violation
of article 36.01.  The violation must be "brought to the attention of the trial court and the State at
a time when it [is] possible to correct the error."  Id.  In this case, however, at no point during the
proceedings did Yeakley object to the district court's failure to receive his plea.  Nor did he raise the
issue in his motion for new trial.  Thus, Yeakley has failed to preserve this issue for appellate review.
See Tex. R. App. P. 33.1(a).
		We overrule Yeakley's second issue.

CONCLUSION
		We affirm the judgment of the district court.


						_________________________________________
						Bob Pemberton, Justice
Before Chief Justice Jones, Justices Puryear and Pemberton
Affirmed
Filed:   February 25, 2011
Do Not Publish
1.   At the close of its case, the State abandoned one of the two theft allegations.
2.   We note that Turner predates Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997), in
which the court of criminal appeals held that "[e]xcept for certain federal constitutional errors
labeled by the United States Supreme Court as 'structural,' no error, whether it relates to jurisdiction,
voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless
error analysis."  Id. at 264.  Although Turner has never been overruled, subsequent cases have held
that a violation of article 36.01 is subject to a harmless error analysis.  See, e.g., Mendez v. State,
212 S.W.3d 382, 388 (Tex. App.--Austin 2006, pet. ref'd); Hernandez v. State, 190 S.W.3d
856, 868 (Tex. App.--Corpus Christi 2006, no pet.); Linton v. State, 15 S.W.3d 615, 620
(Tex. App.--Houston [14th Dist.] 2000, pet. ref'd).
3.   See also Burley v. State, Nos. 14-09-00868-CR & 14-09-00869-CR, 2010 Tex. App.
LEXIS 9933, at *5-6 (Tex. App.--Houston [14th Dist.] Dec. 16, 2010, no pet.) (mem. op.,
not designated for publication) ("Appellant argues for the first time on appeal that the failure to
read the enhancement allegations to the jury and to take his plea on the allegations is reversible error.
By failing to raise this issue in the trial court, appellant has not preserved error for our review.");
Meadows v. State, No. 08-05-00394-CR, 2007 Tex. App. LEXIS 4490, at *18 (Tex. App.--El Paso
June 7, 2007, no pet.) (not designated for publication) ("Any error in the State's failure to
reintroduce the evidence so that it is properly before the jury can be waived by failing to object.");
Pope v. State, No. 05-02-01745-CR, 2004 Tex. App. LEXIS 4783, at *16 (Tex. App.--Dallas
May 27, 2004, pet. ref'd) (op. on reh'g, not designated for publication) ("Appellant did not preserve
error at trial by objecting to the failure to enter a plea to the enhancement.  Even if it was not until
after the trial that appellant 'discovered' he had not entered a plea, appellant failed to raise this issue
in his motion for new trial.  Therefore, we conclude appellant has not preserved any issue for
appeal on this point."); Foster v. State, No. 01-97-00871-CR, 1999 Tex. App. LEXIS 529, at *3-4
(Tex. App.--Houston [1st Dist.] Jan. 28, 1999, no pet.) (not designated for publication) ("Any error
committed by the trial court in not requiring the State to re-introduce the evidence or by allowing
the jury to consider the evidence presented before the reading of the enhancement allegation and
the plea thereto, can be waived if the appellant does not object on that ground."); Haley v. State,
No. 06-98-00040-CR, 1999 Tex. App. LEXIS 104, at *7-8 (Tex. App.--Texarkana Jan. 12, 1999,
pet. ref'd) (not designated for publication) (same).
