                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo

                                            No. 07-15-00196-CR


                                THE STATE OF TEXAS, APPELLANT

                                                      V.

                                    JOSE LUIS CORTEZ, APPELLEE

                               On Appeal from the 108th District Court
                                         Potter County, Texas
                  Trial Court No. 68,587-E, Honorable Douglas Woodburn, Presiding

                                             February 3, 2017

                                                OPINION1
                        Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.2

        At the suppression hearing, the trooper was asked: “So you’re telling the Court

that because you see a van, it’s clean and it’s got two people in it, that [sic] was

        1
           The original opinion in this appeal was issued on November 18, 2015. Our decision was then
appealed to the Texas Court of Criminal Appeals. The latter found that we did not address every issue
raised and necessary to the final disposition of the appeal as required by Texas Rule of Appellate
Procedure 47.1. State v. Cortez, No. PD-1652-15, 2016 Tex. Crim. App. LEXIS 1194, at *7-8 (Tex. Crim.
App. Oct. 12, 2016). The issue which we purportedly failed to address concerned Heien v. North
Carolina, 574 U.S. __, 135 S. Ct. 530, 190 L. Ed. 2d (2014) and its support for the State’s contention that
the State Trooper involved “having seen Cortez driving, at least on the fog line, reasonably believed that a
violation of TEX. TRANS. CODE § 545.058(a) had occurred and his stopping of Cortez was authorized by
law.” The quoted argument appeared on page 16 of the State’s original appellant’s brief. Thus, the Court
of Criminal Appeals vacated our judgment “and remand[ed] the case for reconsideration in light of Heien.”
Id. Both parties were given leave to brief that issue again. Both did. We now reissue our original
opinion, with modifications, and include a disposition of the Heien issue.
        2
            Justice Mackey K. Hancock, retired, not participating.
indicators of potential criminal activity for you?” The trooper answered: “Yes, sir, they

are. They - in and of themselves are nothing, but in the total - when you start adding

them all together, they can be.” When two people in a clean car indicate criminal

activity, then the words of John Lennon have come to fruition: “Strange days indeed -

most peculiar, mama.”3

      Nonetheless, the foregoing circumstances led the trooper to first follow Cortez’s

minivan down Interstate 40 and then stop him after it may have twice crossed onto but

not over the “fog line” appearing on the right side of the lane.4 Cortez believed that the

stop was illegal. The trial court agreed and granted his motion to suppress evidence.

This decision, according to the State, evinced an abuse of discretion, and the findings of

fact and conclusions of law issued by the trial court to support it allegedly lacked

evidentiary basis. We affirm.

      Applicable Law

      First, the applicable standard of review is that enunciated in State v. Iduarte, 268

S.W.3d 544 (Tex. Crim. App. 2008). There, we are told that:

      When reviewing the trial court’s ruling on a motion to suppress, we view
      the evidence in the light most favorable to the trial court’s ruling. When the
      trial court makes explicit fact findings, we determine whether the evidence,
      when viewed in the light most favorable to the trial court’s ruling, supports
      those findings. We review the trial court’s legal ruling de novo. We uphold
      the trial court’s ruling if it is supported by the record and correct under any
      theory of law applicable to the case.

      We afford a great deal of deference to a trial judge’s rulings on questions
      of historical fact, and also on rulings that both apply the law to facts and
      turn on an evaluation of credibility and demeanor. Nonetheless, mixed
      questions of law and fact may be reviewed de novo when they do not
      depend on credibility or disputed facts. This case presents mixed
      questions of law and fact, and we will therefore review the trial court’s
      findings of fact and conclusions of law de novo.

      3
          From the song “Nobody Told Me.”
      4
          The solid white line found on the right side of a traffic lane has come to be called the fog line.
                                                       2
Id. at 548-49 (citations omitted); accord, Jaganathan v. State, 479 S.W.3d 244, 247-48

(Tex. Crim. App. 2015) (criticizing the intermediate appellate court because it “did not

view the record in the light most favorable to the trial court’s ruling”).

       Second, when a warrantless stop is made, the burden lies with the State to prove

its legitimacy.   Grimaldo v. State, 223 S.W.3d 429, 432 (Tex. App.—Amarillo 2006, no

pet.). It may fulfill the burden by illustrating that the law enforcement official making the

stop had reasonable suspicion to believe a traffic infraction occurred. See Jaganathan

v. State, 479 S.W.3d at 247 (stating that “[a]n officer may make a warrantless traffic

stop if the ‘reasonable suspicion’ standard is satisfied”). Such suspicion arises when

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

engaged or is (or soon will be) engaging in criminal activity.’” Id., quoting, Abney v.

State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013).

       Third, and as previously mentioned, the traffic infraction at issue here involved

Cortez supposedly driving on an improved shoulder. Per § 545.058(a) of the Texas

Transportation Code, one operating a motor vehicle “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” under seven enumerated circumstances.

TEX. TRANSP. CODE ANN. § 545.058(a) (West 2011).                Those seven circumstances

consist of 1) “to stop, stand, or park,” 2) “to accelerate before entering the main traveled

lane of traffic,” 3) “to decelerate before making a right turn,” 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,” 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.”

                                               3
Id.5 The legislature defined “improved shoulder” to mean “a paved shoulder.” Id. §

541.302(6). It defined “shoulder” to mean that “portion of a highway” 1) “adjacent to the

roadway,” 2) “designed or ordinarily used for parking,” 3) “distinguished from the

roadway by different design, construction, or marking,” and 4) “not intended for normal

vehicular travel.” Id. § 541.302(15). Noticeably absent from both these definitions and

§ 545.058(a) of the Transportation Code is any reference to a solid white line or “fog

line,” though, arguably, the “fog line” may be the “different . . . marking” referred to in §

541.302(15).

        Application of Law

        Again, the trial court granted Cortez’s motion to suppress and executed written

findings of fact and conclusions of law supporting its decision. Among the findings were

those stating that:

        7. [The trooper] began following the Defendant’s vehicle while Defendant’s
        vehicle was traveling in an easterly direction in the right hand lane of the
        four lane roadway. He then sped up and pulled into the left hand lane as
        his vehicle approached the Defendant’s vehicle. As [the trooper’s] vehicle
        approached and pulled into the left hand lane, Defendant’s vehicle moved
        toward the improved shoulder.

        8. A short time later, Defendant’s vehicle moved toward the improved
        shoulder a second time as the Defendant’s vehicle exited the Interstate to
        the right at a marked exit ramp.

        9. [The trooper] stated he stopped Defendant’s vehicle because he
        observed [] the Defendant’s vehicle drive on the improved shoulder of the
        roadway on the two occasions noted above, each of which event he
        believed to constitute violations of state traffic laws.

        5
          At this point, though, it should be noted that simply driving on an improved shoulder is not prima
facie evidence of a crime. Lothrop v. State, 372 S.W.3d 187, 191 (Tex. Crim. App. 2012). Indeed, “if an
officer sees a driver driving on an improved shoulder, and it appears that driving on the improved
shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, that
officer does not have reasonable suspicion that an offense occurred.” Id. So, before § 545.058(a) can be
the basis of a traffic stop, the officer must see not only the prospective detainee driving on the shoulder
but also the absence of those circumstances permitting the person to so drive. See id. (concluding that
the State did not satisfy its burden to prove reasonable suspicion since the officer failed to testify that
Lothrop’s attempt to pass a slower moving vehicle appearing in his lane by driving on the improved
shoulder was unsafe or unnecessary).
                                                       4
      10. During the suppression hearing, an oral and video tape recorded by
      equipment maintained in [the trooper’s] patrol vehicle was played. On the
      tape, [the trooper] approached the driver’s side of the van and told
      Defendant that he stopped the Defendant because he had driven ... “onto
      the white line, that little white line.”

      11. The video recording played at the hearing clearly demonstrated each
      of the two occasions upon which [the trooper] testified he had observed
      the Defendant’s vehicle drive upon the improved shoulder. On each
      occasion the right rear tire (or its shadow) was observed by the Court to
      come in the proximity of and possibly touch the inside portion or more of
      the white line delineating the roadway from the improved shoulder
      (referred in testimony, and hereinafter, as the “fog line”) but not to extend
      past the [] outermost edge of the fog line.

      [and]

      12. The [S]tate produced no evidence that [the trooper] observed, or
      believed he had observed, any portion of the Defendant’s vehicle pass
      outside the outermost edge of the fog line.

(Emphasis added). Under the category of conclusions of law, the trial court wrote:

      21. The improved shoulder of a state roadway begins at the point of the
      fog line which is furthest from the center of the roadway.

      22. The Defendant’s vehicle did not cross outside the outermost edge of
      the fog line onto the improved shoulder of the roadway. Crossing over the
      portion of the fog line nearest the center of the roadway or upon the fog
      line is not a violation of Texas traffic law; therefore the vehicle was not
      operated on the improved shoulder of the roadway on either occasion
      made the basis for the [trooper’s] traffic stop.

      23. Texas Transportation Code section 545.058 (5) provides that driving
      on the improved shoulder of a roadway is permissible under the
      circumstances when and to the extent necessary a driver is being passed
      by another vehicle. The first occasion in which the officer testified that the
      Defendant drove onto the improved shoulder occurred after the officer’s
      vehicle entered the passing lane and accelerated toward the Defendant’s
      vehicle; therefore, the Defendant was authorized by statute to drive on the
      improved shoulder at such time.

      [and]

      24. Texas Transportation Code section 545.058 (3) provides that driving
      on the improved shoulder of a roadway is permissible when and to the
      extent necessary a driver is decelerating or slowing to make a right turn

                                            5
        from the roadway. The Defendant was in the process of decelerating and
        slowing to make a right turn from the roadway onto the exit ramp when the
        second occasion took place; therefore, the Defendant was authorized by
        statute to drive on the improved shoulder at such time.

(Emphasis added). The video alluded to in the trial court’s findings appears in the

appellate record.

        Upon playing that video, we encountered a rather dark and grainy depiction of

the stop and events leading up to it. They obviously occurred at night, on a dimly lit

Interstate, on its off-ramp and its adjacent access road. And whether the passenger

side tires of the vehicle touched the “fog line” is not easily discerned. No doubt the

vehicle approached the line twice, but its wheels may or may not have crossed onto or

over it, as noted by the trial court in finding that the tires came in “proximity to” and

“possibly touch[ed]” the line.6 Indeed, what could be seen as a possible touching could

well have been nothing more than the shadow of the vehicle moving into the area

thought prohibited by the trooper. The lack of clarity is of import here for it requires us

to defer to the trial court’s interpretation of the events captured in the video.7                      See

Velasquez v. State, No. 07-12-00002-CR, 2013 Tex. App. LEXIS 8246, at *13 (Tex.

App.—Amarillo July 2, 2013, no pet.) (mem. op., not designated for publication)(stating

that “we give almost total deference to the trial court’s factual determinations unless the

video recording indisputably contradicts the trial court’s findings”).

        Yet, if we (like the trial court) also assume arguendo that the fog line was

touched, our job is not over given the tenor of the State’s averment and the trial court’s

response to it. The former argued that the mere encroachment upon the “fog line”

        6
          Of note is the absence of any express finding that the tires of the vehicle at bar actually touched
the white line or “fog line.” Coming in proximity to and possibly touching does not mean the court found
they touched the line. They may or may not have.
        7
         That the content of the video weighed heavily in the trial court’s decision cannot be reasonably
disputed. One need only read the transcript of the reporter’s record to realize that.
                                                     6
equates driving upon an improved shoulder while the latter concluded that “[c]rossing

over the portion of the fog line nearest the center of the roadway or upon the fog line is

not a violation of Texas traffic law,” that is § 545.058(a). So, what we have before us is

a question that one could liken to splitting hairs, or in this case, a four inch white line;

under § 545.058(a), is one deemed as driving on an improved shoulder by simply

touching the “fog line” or by proceeding beyond it? Obviously, the trial court read the

statute as requiring the driver to proceed beyond or to cross over the line, not merely to

cross onto or touch it. We agree.

       Again, the statutes at issue say nothing of a “fog line” or “solid white line.” Those

words appear nowhere in § 541.302 or § 545.058 of the Transportation Code. Instead,

those provisions speak of driving on an “improved shoulder,” “shoulder,” “paved

shoulder,” or a “portion of a highway” “adjacent to the roadway . . . designed and

ordinarily used for parking . . . [while] distinguished from the roadway by different

design, construction, or marking . . . [and] not intended for normal vehicular travel.” Yet,

some four inch line painted on the roadway by someone whom the record fails to

identify is the focal point of not only this case but most every other case involving

§ 545.058(a).   See, e.g, State v. Dietiker, 345 S.W.3d 426, 429 (Tex. App.—Waco

2011, no pet.) (noting that the “fog line” was “crossed”); Thomas v. State, 420 S.W.3d

195, 200-201 (Tex. App.—Amarillo 2013, no pet.) (noting the same); Tyler v. State, 161

S.W.3d 745, 749-50 (Tex. App.—Fort Worth 2005, no pet.) (noting the same).

       Nonetheless, all here seem to agree that the “fog line” identifies the boundary

between a lane of traffic and its adjacent shoulder. For purposes of this opinion, we will

join them and also agree that the “fog line” serves as such a boundary. See State v.

Huddleston, 164 S.W.3d 711, 714 n.1 (Tex. App.—Austin 2005, no pet.) (suggesting the


                                             7
“fog line” is such a boundary).            Being a “boundary,” the line in question can be

construed as showing “where an area ends and another area begins.”                             Boundary

Definition,    MERRIAM-WEBSTER,           http://www.merriam-webster.com/dictionary/boundary

(last visited November 17, 2015) (defining “boundary” as “something . . . that shows

where an area ends and another area begins”). That is, on one side lies the lane of

traffic while on the other lies the improved shoulder. And, if the areas lie on either side

of the line then logic suggests that the line must be crossed over before one area has

been left and another entered. Indeed, one does not enter Mexico from Texas until he

crosses the boundary between Texas and Mexico. Nor does one enter Louisiana from

Texas until he crosses the boundary between those two States. While we do not deal

with leaving one State for another here, we do deal with geographic areas separated by

a line. So, our analogy to crossing borders between States is no less apt here. Until a

portion of the vehicle driven by Cortez crossed beyond the “fog line” from the area

known as his lane of traffic to the area known as the improved shoulder, it cannot be

said that he drove on an improved shoulder.                     We, like the trial court, interpret

§ 545.058(a) as requiring as much.             And, again, the trial court determined that the

vehicle never crossed over the line, even if one were to assume that the line was

touched.8

        That the State cites to no authority indicating that the “fog line” need only be

touched to give rise to a violation of § 545.058(a) is telling, as is our inability to find any

such authority. Indeed, each opinion we discovered wherein a violation of that statute

        8
         Contrary to the State’s contention, the trial court did not find via conclusions of law numbers 23
and 24 that Cortez crossed over or beyond the line. Neither contains such language. More importantly,
an attempt to somehow imply such a meaning in them would effectively negate the expressed language
of conclusion number 22 and finding number 11. Both 11 and 23 clearly illustrate that Cortez may have
encroached upon but did not cross beyond the “fog line.” We cannot construe findings to be in conflict
but must reconcile the conflicting findings, and harmonize the judgment with the findings of fact and
conclusions of law upon which it is based. See Morton v. Hung Nguyen, 369 S.W.3d 659, 674 (Tex.
App.—Houston [14th Dist.] 2012), rev’d in part on other grounds, 412 S.W.3d 506 (Tex. 2013)).
                                                      8
was found to have legitimized a traffic stop involved the detainee crossing the line, not

simply touching it. See, e.g,. State v. Dietiker, supra.    None involved simply touching

the line.

       Similarly inconsequential is the State’s allusion to § 541.302(5) of the

Transportation Code as proof that the “fog line” itself constitutes part of the shoulder.

That provision serves to define the words “highway or street” and, in doing so, states

that they mean “the width between the boundary lines of a publically maintained way

any part of which is open to the public for vehicular travel.” TEX. TRANSP. CODE ANN.

§ 541.302(5) (West 2011). The State supposes that one of the “boundary lines” must

be the “fog line” to the right of the lane of traffic since it is a boundary. That supposition

cannot withstand reasonable scrutiny, though.

       In § 541.302(5), the legislature is speaking about boundary lines of “a publically

maintained way” where “part of which is open to the public for vehicular travel.”

Obviously, an “improved shoulder” is a publically maintained way given that it means “a

paved shoulder.”     Id. § 541.302(6).    And, if it is paved then someone must have

maintained it at some time. Moreover, one may lawfully engage in “vehicular travel”

upon an improved shoulder, as illustrated by § 545.058(a) itself. Again, the statute’s

language begins with the phrase revealing that “[a]n operator may drive on an improved

shoulder. . . .” Id. § 545.058(a) (emphasis added). If 1) a “highway or street” includes

the area between the boundary lines of a “maintained way” which is “open to the public

for vehicular travel” and 2) the “improved shoulder” not only is maintained but also

subject to being driven upon lawfully by the public, then logically the “improved

shoulder” must be part of the “highway or street.” So, the “fog line” found left of an




                                              9
improved shoulder and well within the “highway or street” cannot be one of the

“boundary lines” of the “highway or street.”

       Nor do we find significance in one other argument raised by the State. The

argument of which we speak involves the trooper’s purported mistake in reading

§ 545.058(a) to prohibit, under certain circumstances, a tire of a vehicle from touching

the “fog line” in any minute or incidental way; that, in his estimation, constitutes driving

on the improved shoulder.         And because this mistake of law purportedly was

reasonable, a search and seizure based on it would be legitimate. The argument is

founded upon Heien v. North Carolina, 574 U.S. __, 135 S. Ct. 530, 190 L. Ed. 2d

(2014).

       The United States Supreme Court, in Heien, reiterated that “searches and

seizures based on mistakes of fact can be reasonable.” Heien, 135 S. Ct. at 536. “An

officer might, for example, stop a motorist for traveling alone in a high-occupancy

vehicle lane, only to discover upon approaching the car that two children are slumped

over asleep in the back seat. The driver has not violated the law, but neither has the

officer violated the Fourth Amendment.” Id. at 534. Yet, that was not the issue before

it. Instead, the court was faced with the question of whether “a mistake of law can

nonetheless give rise to the reasonable suspicion necessary to uphold the seizure

under the Fourth Amendment.” Id. It answered “that it can.” Id. It then cautioned that

the “Fourth Amendment tolerates only reasonable mistakes, and those mistakes—

whether of fact or of law—must be objectively reasonable.” Id. at 539 (emphasis in

original). “We do not examine the subjective understanding of the particular officer

involved . . . [a]nd the inquiry is not as forgiving as the one employed in the distinct

context of deciding whether an officer is entitled to qualified immunity for a constitutional


                                               10
or statutory violation.”9 Id. “Thus, an officer can gain no Fourth Amendment advantage

through a sloppy study of the laws he is duty-bound to enforce.” Id. at 539-40.

       The law at issue in Heien involved the number of operating stop lights or lamps

that a vehicle had to have. The officer thought two were needed and decided to stop

the vehicle in which Heien rode because only one was operative. Debate then arose

about how many were actually needed, and dispute on that matter existed given the

wording of two statutes. One could be read as requiring only one and another could be

read as requiring two.      Due to that circumstance, the Supreme Court concluded that it

was “objectively reasonable for an officer in Sergeant Darisse’s position to think that

Heien’s faulty right brake light was a violation of North Carolina law.” Id. at 540.

       Here, the trooper’s mistaken interpretation pertained to whether the boundary

between the lane and improved shoulder began at the inside edge of the “fog line.” As

much is exemplified by the following exchange between the trooper and defense

counsel:

       Q.      So –
       A.      The lane ends at the inside of that fog line.

       Q.      I’m sorry?
       A.      The lane - excuse me - the driving lane ends at that fog line.

       Q.      Where do you find that definition? If you’re telling the Court that is the law,
               where do you find that definition that the driving lane ends at the inside
               edge of a fog line?
       A.      It ends at the fog line.

       Q.      Where does the shoulder begin?
       A.      At the fog line.

       Q.      Which side of the fog line?
       A.      I say inside; you say outside.


       9
          As noted by Justice Kagan when concurring in the opinion and judgment of the majority in
Heien, the standard for gaining qualified immunity is much more lax than that establishing a reasonable
mistake of law. Heien v. North Carolina, 574 U.S. __, 135 S. Ct. 530, 541, 190 L. Ed. 2d (2014).
                                                   11
        Q.      Do you have any law to support your stop, Officer?
        A.      Yes, sir, I do.

        Q.      Okay. What is that law that you’re referring to?
        A.      The second violation is committed as he’s exiting the roadway and that is
                the one I stated to him.

        Q.      Okay. But, Trooper, I’m talking to you about this one right now.
        A.      Yes, sir.

        Q.      Okay. What law says where the shoulder begins?
        A.      There’s not a law - I don’t know, to my knowledge, if there’s a law
                that states where the exact lane ends.

        Q.      Okay. So you’re not aware of a definition that says this is what an
                improved shoulder is. Correct?
        A.      The improved shoulder is the edge of the roadway.

        Q.      The part that’s on the other side of the line. Right?
        A.      Not in my interpretation.

(Emphasis added).

        In reply to the State’s argument, we first say that the matter was never preserved

below. The State did not claim below that even if touching the line were not a violation

of the statute, the stop remained legitimate because the trooper operated under a

reasonable mistake of law. The latter concept was not mentioned to the trial court.10

This is of import because new grounds supporting an argument rejected by the trial

court may not be raised for the first time on appeal. Hull v. State, 67 S.W.3d 215 (Tex.

Crim. App. 2002). And, the first time we hear about the trooper operating under a

reasonable mistake of law per Heien is in the appellant’s brief. Such an omission to

preserve cannot be ignored, according to our Court of Criminal Appeals. Wilson v.

State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010) (op. on reh’g) (prohibiting the
        10
           The State did suggest that a violation need not be proven for there to be justification to detain,
and it offered to provide the court with an opinion supporting that statement. The opinion was State v.
Wise, No. 04-04-00695-CR, 2005 Tex. App. LEXIS 10796 (Tex. App.—San Antonio Oct. 26, 2005, no
pet.)(mem. op., not designated for publication), and it did not involve either Heien or a reasonable mistake
of law. Nor could it be interpreted as encompassing that argument since, at the time, our very own Court
of Criminal Appeals had rejected the proposition that a reasonable mistake of law may still justify a
detention. Robinson v. State, 377 S.W.3d 712, 722 (Tex. Crim. App. 2012).
                                                     12
reviewing court from considering a matter that was not preserved for review). And,

being unpreserved, we cannot consider the argument.

      Next, and unlike the situation in Heien, the State cites us to no language of a

statute that is ambiguous or otherwise susceptible to differing interpretations. It does

argue that “[e]ither, TEX. TRANS. CODE 541.302(5) (defining a highway as the portion

between the boundary lines) is clear and dispositive of the trooper’s interpretation of the

statute or the law is, as the trial courts seems [sic] to suggest, ambiguous.” But, it does

not explain what in § 541.302(5) is ambiguous. See Liverman v. State, 470 S.W.3d 831,

836 (Tex. Crim. App. 2016) (stating that an ambiguity exists when statutory language

may be understood by reasonably well-informed persons in two or more different

senses). We are not told how the language of § 541.302(5) can be understood in two or

more different senses. Nor are we told how one of those senses encompasses the

notion that simply touching the white line equals driving on an improved shoulder.

      Indeed, the provision actually lacks relevance.       The traffic violation at issue

concerns the act of driving upon an “improved shoulder to the right of the main traveled

portion of a roadway.” TEX. TRANSP. CODE ANN. § 545.058(a) (West 2011) (emphasis

added). As discussed above, § 541.302(5) of the same Code defines “highway or

street,” not an “improved shoulder.” As also mentioned before, the phrase “improved

shoulder” means “a paved shoulder,” id. § 541.302(6), while “shoulder” means the

“portion of a highway that is” 1) “adjacent to the roadway,” 2) “designed or ordinarily

used for parking,” 3) “distinguished from the roadway by different design, construction,

or marking,” and 4) “not intended for normal vehicular travel.” Id. § 541.302(15). How

the definition of “shoulder” or “improved shoulder” can be interpreted in differing ways

goes unmentioned by the State. Similarly missing is explanation of how or why those


                                            13
definitions can be read as meaning that one need only touch some part of the “fog line”

to violate § 545.058(a) of the Code. Nor can we find one.

        Thirdly, and most telling, is the absence of any judicial authority supporting the

officer’s apparent interpretation of § 545.058(a) as justifying the belief that touching the

line is all that is required. And rather than fill the void, the State endeavors to show why

pre-existing opinions contradicting its position mean nothing. For instance, in State v.

Hanrahan, No. 10-11-00155-CR, 2012 Tex. App. LEXIS 1271, at *15-18 (Tex. App.—

Waco Feb. 15, 2012, no pet.) (mem. op., not designated for publication), whether the

officer was justified in stopping Hanrahan for violating § 545.058(a) was in play. The

trial court viewed the rather unclear video of the incident and said “I couldn’t even tell

[that she] was driving on the shoulder until he [Officer Bell] pointed it out, and her tires

might have—I’m not even sure they crossed all the way across the white line. If that’s

sufficient to call it driving on the shoulder, I don’t know if I have ever driven a car when I

didn’t justify getting stopped.” Id. at *4-5. Despite this evidence that the accused at

least touched the white line with her tires, the trial court nonetheless found that the

accused “did not travel on the improved shoulder of the highway prior to the stop.” Id.

at *6. Upon reviewing the record, the appellate court concluded that the State failed to

present evidence demonstrating that “the trial court abused its discretion in granting

appellee’s motion to suppress.” Id. at *17-18.              Yet, here, the State deems the opinion

unworthy of precedential value since it was “unpublished” and “[t]he Tenth Court

affirmed the suppression as a matter of deference to the trial court’s credibility

determination, not on the question of law issue.”11 Needless to say, the portions of


        11
          We find interesting the State’s intimation that opinions it finds detrimental to its position should
be ignored because they are unpublished, however, unpublished opinions supportive of its position, like
State v. Wise, supra, cited to the trial court, should be considered. And, that seems to be the fallacy of
the unpublished opinion. If founded upon legal authority and is otherwise analytical in the way it
                                                      14
Hanrahan we quoted above speak for themselves; the viewing court found that the trial

court did not abuse its discretion in granting the motion to suppress despite evidence

that the white line was touched.

       The facts and outcome in the “published” opinion of Scardino v. State, 294

S.W.3d 401 (Tex. App.—Corpus Christi-Edinburg 2009, no pet.), are more telling. It too

involved the purported violation of § 545.058(a) of the Transportation Code. There, the

DPS trooper actually testified that Scardino “crossed the fog line” once. Id. at 403-404.

Despite this testimony, the appellate court concluded that the trooper never testified that

Scardino “‘drove’ on the shoulder” and then reversed the trial court’s decision to deny

the motion to suppress. Id. at 406. Apparently to that court as well, evidence of the fog

line being traversed or touched is not evidence that the accused drove on the shoulder.

Yet, the State minimizes the impact of the opinion by suggesting that the “Court’s

analysis appears to focus on the lack of sustained driving on the shoulder rather than

whether he was on the shoulder at some point.” We have no evidence of sustained

driving on the shoulder by Cortez here, only an instance of possibly touching the fog line

next to the shoulder, but that did not stop either the State or trooper from concluding

that Cortez violated § 545.058(a), despite Scardino having been issued years before the

incident at bar occurred. To paraphrase what mothers often say to their children: “you

can’t have your cake and eat it too.”

       Next, and worth reiteration is another observation made earlier. The trial court

did not even find that Cortez’s vehicle touched the “fog line.” It, in effect, hedged its

finding by indicating that while the possibility of a touch may exist, the line was not



_________________________
addresses an issue, there is no legitimate reason to ignore the writing simply because it is labeled
“unpublished” yet easily found on commonly searched websites such as Westlaw and Lexis.
                                                 15
crossed in toto.    Without such a finding, it matters not whether an officer could

reasonably believe that touching the line was a violation of § 545.058(a).

      Placing the actual argument of both the State and officer into perspective further

shows the unreasonableness of their proposition. The statute at issue permits one to

“drive on an improved shoulder” in some situations. So, it purports to regulate the act of

driving on the shoulder.    Even if we were to concede that the four inch “fog line”

demarcates the boundary between the shoulder and driving lane, nothing in

§ 545.058(a) is said of driving on the boundary line between the lane and shoulder. We

would have to rewrite the provision to interject that language into it, and such is an

ability denied the judiciary. See Cadena Comercial USA Corp. v. Tex. Alcoholic Bev.

Comm’n, 449 S.W.3d 154, 168 (Tex. App.—Austin 2014, pet. granted) (stating that a

court may not rewrite a statute). And, though we may interpret statutes, it would be

asking us to do the unreasonable and impermissible if we were to ignore both the plain

words written by the legislature and intent illustrated by those words. See Note Inv.

Grp., Inc. v. Assocs. First Capital Corp., 476 S.W.3d 463, 476 (Tex. App.—Beaumont

2015, no pet.) (stating that a statute is construed in a manner to effect the legislature’s

intent as evinced by the words written).         Both the plain words in and intent of

§ 545.058(a) encompass the act of driving on the improved shoulder under certain

circumstances. A momentary touch of some fraction of a “fog line” or boundary hardly

connotes driving upon either the boundary or the area on the other side of the

boundary.    More importantly, the trooper himself, who apparently is charged with

enforcing and undoubtedly trained in enforcing traffic codes, could recall no law

justifying such an interpretation of § 545.058(a) when pressed by defense counsel. As




                                            16
said in Heien, the mistake of law must be reasonable. The mistaken interpretation of

§ 545.058(a) offered by the State here falls outside that realm.

       Without contrary legal authority to support contrary positions or without ambiguity

in a law causing it to be susceptible to differing interpretations, there is no basis upon

which to invoke Heien and the claim of reasonable mistake of law. The State has

shown us neither. Nor has it attempted to explain how any legal authority supports the

trooper’s notion that the inside of the “fog line” is the boundary between the lane and

shoulder and touching it in any manner violates § 545.058(a). It is not enough to merely

say that the trooper believed that to be the law; this is so because his subjective beliefs

are irrelevant. Heien, 135 S. Ct. at 539 (stating that “[w]e do not examine the subjective

understanding of the particular officer involved”).    The position asserted must have

some basis in rationality, even if wrong. That proffered here does not.

       In sum, we find reason in the words of the trial court in State v. Tarvin, 972

S.W.2d 910 (Tex. App.—Waco 1998, pet. ref’d). Driving is an exercise in controlled

weaving.   Id. at 911.   It is difficult enough to keep a straight path on the many dips,

rises, and other undulations built into our roadways. To adopt the State’s interpretation

of § 545.058(a) and permit a trooper to stop someone for the slightest touch of a “fog

line” while maneuvering over those undulations would push us further into the “strange

days” mentioned earlier. We choose not to do that.

       The factual record before us supports the trial court’s finding that the vehicle

Cortez drove failed to cross over the “fog line” onto the improved shoulder.

Furthermore, the trial court’s interpretation of § 545.058(a) comports with ours. Driving

onto an improved shoulder requires something more than driving upon the four inches

of a “fog line,” like Cortez “possibly” may have done here. See Scardino v. State, supra;


                                            17
see also State v. Hanrahan, supra; State v. Rothrock, No. 03-09-00491-CR, 2010 Tex.

App. LEXIS 6356 (Tex. App.—Austin Aug. 5, 2010, no pet.)(mem. op., not designated

for publication). Consequently, the trial court did not abuse its discretion in granting the

motion to suppress, and we affirm that order.



                                                        Brian Quinn
                                                        Chief Justice


Publish.




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