                                            NO. 07-01-0197-CR

                                    IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                  PANEL E

                                      SEPTEMBER 20, 2002
                                ______________________________

                                        THE STATE OF TEXAS,

                                                                     Appellant

                                                       v.

                                     JAMES ROBERT GLEASON,

                                                     Appellee
                             _________________________________

                 FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                   NO. 41,827-A; HON. RICHARD DAMBOLD, PRESIDING
                           _______________________________

Before QUINN and JOHNSON, J.J., and BOYD, S.J.1

        The State of Texas appeals from an order granting the motion of James Robert

Gleason (Gleason) to suppress evidence. The evidence sought to be suppressed was

obtained as a result of a traffic stop by a police officer. Through two points of error, the

State alleges that the trial court erred because it 1) “failed to consider all the evidence

presented” at the suppression hearing and 2) misapplied the law to the facts. We affirm.




        1
       Joh n T . Boyd, Chief Justice (Re t.), Seventh Court of A ppe als, sitting by ass ignm ent. T ex. G ov’t
Code Ann. §75.0 02(a )(1) (V erno n Su pp. 2002 ).
                                      Background

      The only evidence offered at the suppression hearing consisted of testimony by

Officer Mike Martinez, i.e. the officer who stopped Gleason. According to the officer,

Gleason’s car had been “weaving from side to side inside the lane” as it drove down a four

lane road. The vehicle was then seen crossing over the yellow center-stripe which lay to

Gleason’s left and divided his lane from oncoming traffic. Gleason supposedly “corrected

his action and when he did so he crossed the white dotted line that separated” his lane

from the one to his right. Thereafter, Gleason allegedly traveled on for several blocks

before moving into the right hand lane, stopping at an intersection apparently requiring no

stop, and turning right. The officer testified that in completing the maneuver, Gleason

turned wide and ventured into the “oncoming traffic lane.”

       Upon cross examination, however, the officer’s testimony changed. No longer did

he say that Gleason’s car crossed the yellow stripe. Instead, he admitted that it merely

“touched” the yellow line “momentarily” and then moved away from it without any “jerking”

motion. As to crossing the “white dotted line” to his right, the officer conceded that

Gleason did not do so until a block or more after the yellow line was momentarily touched

and that he recovered in a way which Martinez termed as “nothing notable.” Martinez also

stated that there was no other traffic about, that he did not feel himself in danger due to

Gleason’s driving, and that Gleason maintained a consistent speed within the limit

assigned to the road until effort was made to turn right. And, when that right turn was

attempted, Gleason activated his turn indicator to signal. Whether Gleason stopped before

turning then became the subject of a dispute, which dispute resulted in the officer stating

that he had testified in an administrative hearing that Gleason did not stop but merely

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slowed before turning. Finally, Martinez conceded that 1) the turn may have been wide to

avoid cars parked along the curb, though he could not recall if there were any such cars

present, 2) he stopped Gleason merely due to his alleged “failure to maintain a single

lane,” and 3) “based on everything [he] had observed . . . up to the point that [he] engaged

[his] emergency equipment . . . [he] did [not] have any suspicions about . . . [Gleason]

before approaching him.”

        Upon hearing the evidence, the trial court stated that:

        It appears that the reason for the stop was failure to drive in a single lane.
        I cannot find a traffic violation on that based on the testimony. Apparently, if
        he had crossed the double stripe that would have constituted a separate
        violation, but it’s unclear to the Court that he crossed or merely touched it.
        There are no inarticulable facts giving rise to a suspicion, because the officer
        testified that he had no suspicions.

(Emphasis added). The court’s allusion to the want of suspicion on the part of the officer

was later memorialized in its findings of fact and conclusions of law. In them, the trial court

found, among other things, that Gleason had “momentarily touched the yellow line,”

crossed the white dotted line approximately a block to a block and a half after touching the

yellow line, and returned to his lane “without any notable observation.” So too did he find

that no one was in the lane to Gleason’s right when Gleason entered it, the extent to which

Gleason entered the lane to his right was unknown, the officer did not feel endangered by

Gleason’s conduct, the officer stopped Gleason solely for Gleason’s purported failure to

maintain a single lane, and the officer had “no other suspicion about the driver at the time

of the stop . . . .”

                                    Standard of Review

        The standard of review applicable to issues like that at bar is well-settled. Instead

of reiterating it, we cite the parties to State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000);

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Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App.1997); Benitez v. State, 5 S.W.3d 915

(Tex. App.--Amarillo 1999, pet. ref'd); and State v. Clemmer, 999 S.W.2d 903 (Tex.

App.--Amarillo 1999, pet. ref'd) for an explanation of it.

                                 Application of Standard

       Point One - Trial Court failed to consider all of the evidence.

       As previously mentioned, the State initially contends that the trial court erred in

failing to consider all of the evidence before it. The evidence which it purportedly failed to

consider is that indicating Gleason turned in an illegal manner. Furthermore, the turn was

allegedly illegal because he failed to make it “as closely as practicable to the right-hand

curb or edge of the roadway.” See TEX . TRANSP . CODE ANN . §545.101(a) (Vernon 1999)

(stating that a right-hand turn must be made in that manner). And, had the trial court

considered that evidence, it would have been obligated to find that the officer had a

legitimate basis to stop Gleason, concludes the State. We overrule the point.

       Needless to say, the trial court, as factfinder, was free to believe or disbelieve all or

any part of the testimony imparted by the sole witness. State v. Ross, 32 S.W.3d at 855.

This was especially so given that his testimony was not free from contradiction. Simply

put, because the officer contradicted or retracted his prior testimony in various material

ways while undergoing cross-examination, the trial court was free to discredit what the

officer said about the turn. So, contrary to the State’s supposition, it was not obligated to

consider that evidence. For us to hold otherwise would be for us to implicitly overrule the

holding by the Court of Criminal Appeals in Ross; that we cannot do.




                                               4
         Or, it may be that the trial court believed the officer when he said that 1) he stopped

Gleason simply for failing to stay in one lane, 2) he did not suspect Gleason of anything

else, and 3) Gleason may have turned as he did to avoid cars parked along the curb.2

And, if the officer indicated that he did not interpret Gleason’s actions as violative of other

traffic regulations, the court was free to consider that assessment in resolving what actually

occurred. In short, it may be that the trial court actually considered that evidence and

reasonably interpreted it in a way other than that desired by the State.

         Point Two - Trial Court’s failure to properly apply the law to the facts.

         In its second and last issue, the State claims that the trial court misapplied the law.

That is, it believes that the trial court should have applied precedent involving stops

wherein an officer saw the detainee cross the yellow line dividing opposing lanes of traffic.

Instead, the court followed authority applicable to situations wherein an officer merely saw

the detainee weave within a lane of traffic in a safe manner. And, because the trial court

allegedly followed the wrong line of authority, it erred. We again overrule the point.

         The precedent to which the State alluded is Texas Dept. Public Safety v. Chang,

994 S.W.2d 875 (Tex. App.–Austin 1999, no writ). There, the court held that the officer

had legitimate basis to stop Chang since Chang had crossed the center line of the

roadway. Id. at 877. Indeed, statute requires one operating a vehicle on a road having

four or more lanes “and providing for two-way movement” not to drive left of the center line,

except in certain situations. TEX . TRANSP . CODE ANN . 545.051(c). Yet, the trial court at bar


         2
          The latter bit of evidence is of import given that the traffic regulation requ ires one to “turn as closely
as practicable to the right-hand curb or edge . . . .” T EX . T RANSP . C ODE A N N . 545 .101 (a) (V erno n 19 99). The
potentiality of cars being parked next to th e rig ht-hand curb could well have rendered an attempt to stay as
closely to the right-hand curb as practicable rather impracticable.

                                                           5
found that Gleason merely touched the yellow centerline momentarily, not that he crossed

it. And, to the extent that it did not find that Gleason crossed it or otherwise drove left of

the center line, the holding in Chang is inapplicable to the circumstances before us.

       Rather, our situation is akin to those in Hernandez v. State, 983 S.W.2d 867 (Tex.

App.–Austin 1998, pet. ref’d) and State v. Cerny, 28 S.W.3d 796 (Tex. App.–Corpus Christi

2000, no pet.).    They held that drifting from a lane constitutes a violation of traffic

regulations, namely TEX . TRANSP . CODE ANN . §545.060(a), and justifies a stop when the

movement is unsafe or made in an unsafe manner. State v. Cerny, 28 S.W.3d at 801;

Hernandez v. State, 983 S.W.2d at 872-73. Yet, before us is no evidence of record

indicating that Gleason’s drift from his lane was unsafe or made in an unsafe manner.

Again, there were no other cars around save for the officer’s, and, the officer did not feel

himself endangered. Moreover, Gleason corrected the drift in a way which did not arouse

concern in the officer. Thus, the circumstances before the trial court fell within the ambit

of Hernandez and Cerny. So, it had legal and factual basis upon which to hold that the

traffic stop conducted by the officer was improper.

       Accordingly, we affirm the order granting the motion to suppress. Pursuant to Rule

2 of the Rules of Appellate Procedure and in order to expedite the decision, we suspend

the operation of Rule 39.9 of the Rules of Appellate Procedure to permit submission of the

case prior to the expiration of the 21-day notice provided for in that rule.



                                                         Brian Quinn
                                                           Justice
Do not publish.



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