                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-06-183-CR


CHAD AVERY FOWLER                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

     FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

      The question in this DWI case is whether a police officer has probable

cause or reasonable suspicion for a traffic stop when the officer observes the

the tires of the defendant’s vehicle cross into an adjacent same-direction lane

by a tire’s width a single time when there is no other traffic in the area. We

answer “no” and reverse the trial court’s judgment.
                                 Background

      On July 23, 2005, a little after midnight, Officer Patrick Knotts of the

Mansfield Police Department was driving directly behind Appellant’s pick-up

truck on Debbie Lane, a four-lane road divided by a median. Officer Knotts

testified that he observed the truck cross into an adjacent same-direction lane

by a tire’s width and that the truck drifted within its lane two more times,

touching the white line between the lanes.

      Officer Knotts immediately initiated a traffic stop, and Appellant pulled

into a private driveway. According to Officer Knotts, when he asked Appellant

for his license and insurance information, Appellant acted strange, seemed

disoriented, and fumbled through his camera bag before pulling his wallet from

his shorts pocket. Officer Knotts also noticed that Appellant’s eyes were red,

glassy, and bloodshot. Appellant had a hard time concentrating and did not

properly respond to Officer Knotts’s questioning. Appellant told Officer Knotts

that he had consumed one twelve-ounce Keystone beer about an hour prior to

the stop. However, Officer Knotts found an open twelve-ounce Keystone beer

in the front passenger seat of Appellant’s truck, and the can was cold to the

touch.




                                      2
      Officer Knotts asked Appellant to perform some field sobriety tests. On

the horizontal gaze nystagmus test, Officer Knotts observed a lack of smooth

pursuit in both eyes and four out of the six nystagmus clues. Appellant then

failed to maintain the mandated stance in the walk-and-turn test. He stated

that he could not perform the test because he was tired and refused to continue

the field sobriety tests all together. Appellant also refused to take a breath

test. Officer Knotts arrested Appellant for DWI due to the loss of use of his

mental and physical faculties.

      Appellant sought to suppress all evidence from the traffic stop. The trial

court held a hearing on his motion to suppress after jury selection but before

the presentation of evidence. At the conclusion of the hearing, the trial court

denied Appellant’s motion to suppress. A jury convicted Appellant of DWI and

sentenced him to twenty-five days’ confinement and a fine of $650. This

appeal followed.

                                   Discussion

      In two points, Appellant argues that the trial court erred in denying his

motion to suppress because Officer Knotts had no probable cause or reasonable

suspicion to justify the initial traffic stop. The State argues that Officer Knotts




                                        3
had reasonable suspicion that Appellant had violated section 545.060(a) of the

Texas Transportation Code. 1

1.    Standard of Review

      Generally, we review a trial court’s ruling on a motion to suppress

evidence under a bifurcated standard of review.        Carmouche v. State, 10

S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85,

89 (Tex. Crim. App. 1997). In reviewing the trial court’s decision, we do not

engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543

(Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort

Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the

credibility of the witnesses and the weight to be given their testimony. State

v. Ross, 32 S.W .3d 853, 855 (Tex. Crim. App. 2000); State v. Ballard, 987

S.W.2d 889, 891 (Tex. Crim. App. 1999). Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if

the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Montanez v. State, 195 S.W.3d

101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644,


      1
      … On appeal, the State does not argue that Officer Knotts had probable
cause for the stop.

                                        4
652-53 (Tex. Crim. App. 2002); State v. Ballman, 157 S.W.3d 65, 68 (Tex.

App.—Fort Worth 2004, pet. ref’d). But when the trial court’s rulings do not

turn on the credibility and demeanor of the witnesses, we review de novo a trial

court’s rulings on mixed questions of law and fact. Estrada v. State, 154

S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.

The historical facts in this case are not disputed; therefore, we review the ruling

on the motion to suppress de novo. See Oles v. State, 993 S.W.2d 103, 106

(Tex. Crim. App. 1999).

2.    Suppression Hearing Testimony

      Officer Knotts was the State’s only witness at the suppression hearing.

He testified, in relevant part, as follows:

      Q. Okay. And around 12:25 a.m., did you observe anything out
      of the ordinary?

      A. I observed a white vehicle commit -- a white truck commit a
      traffic violation, and it caught my attention.

      Q. Okay. And what was that traffic violation?

      A. Failed to drive in a single lane of traffic.

      Q. Okay. Could you describe for the Judge exactly how the
      vehicle failed to maintain a single lane of traffic?

      A. Sure. The vehicle was observed traveling eastbound on Debbie
      Lane. It crossed the white line, approximately a tire’s width, and
      then it drifted over and touched the white line two more times.


                                        5
      ....

Q. And you also testified the sole reason why you stopped that
vehicle was for failure to maintain a single lane of traffic.

A. That’s correct.

Q. You also testified that you observed the vehicle cross over the
white line one time, approximately a tire’s width --

A. Correct.

Q. -- and then drift within its lane two other times --

A. And touch the white line.

Q. -- and touch the white line. Okay.

      ....

Q. Do you recall what block number that was, approximately?

A. The violation was in the 100 block.

      ....

Q. And where did you effectuate the traffic stop?

A. The vehicle stopped in the 200 block of Debbie, East Debbie.

Q. So approximately a one-block period?

A. Correct.

      ....

Q. So nothing was dangerous about moving over that line?



                                 6
      A. No vehicles were almost struck, so, no.

            ....

      Q. Okay. Could you tell the Court the Transportation Code
      definition of “failure to maintain a single lane”?

      A. If vehicles do not -- the vehicle has to travel within the lane of
      traffic; then, if it’s going to change lanes, it needs to signal that
      lane-change. He never signaled any lane-change, so that would be
      what I based the traffic stop off of.

      Q. And that’s your understanding of the Transportation Code
      definition?

      A. Failure to maintain a single lane of traffic while operating a
      motor vehicle.

      Q. Okay. Did the vehicle commit any other traffic violations other
      than crossing that line one time?

      A. No.

      Q. Did you observe any incident that came close to causing an
      accident or was unsafe, in any manner, in that regard?

      A. No.

Officer Knotts also testified that there was not a vehicle in the adjacent lane

when Appellant’s tires crossed the line and that his vehicle did not strike the

curb when it crossed the line.




                                       7
3.    Reasonable Suspicion

      In his second point, Appellant argues that Officer Knotts illegally seized

him by stopping him without reasonable suspicion that he was, had been, or

soon would be engaged in criminal activity. We will consider this point first

because if the stop was unjustified by reasonable suspicion, then it was also

unjustified under the more stringent standard of probable cause. See Klare v.

State, 76 S.W.3d 68, 75 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

      The Fourth Amendment2 protects against unreasonable searches and

seizures. U.S. C ONST. amend. IV. To suppress evidence because of an alleged

Fourth Amendment violation, the defendant bears the initial burden of producing

evidence that rebuts the presumption of proper police conduct. Torres v. State,

182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005). A defendant satisfies this burden by establishing

that a search or seizure occurred without a warrant. Torres, 182 S.W.3d at

902; Ford, 158 S.W.3d at 492. Once the defendant has made this


      2
        … Where, as in this case, the appellant has not separately briefed state
and federal constitutional claims, we assume that the appellant claims no
greater protection under the state constitution than that provided by the federal
constitution. Varnes v. State, 63 S.W.3d 824, 829 (Tex. App.—Houston [14th
Dist.] 2001, no pet.). Therefore, we will analyze Appellant’s claim solely under
the Fourth Amendment of the United States Constitution, following guidelines
set by the United States Supreme Court in interpreting the Fourth Amendment.
See State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App. 1998).

                                       8
          showing, the burden of proof shifts to the State, which must then

establish that the government agent conducted the search or seizure pursuant

to a warrant or that the agent acted reasonably. Torres, 182 S.W.3d at 902;

Ford, 158 S.W.3d at 492.

      The Supreme Court has held that a detention is reasonable under the

Fourth Amendment if the government agent reasonably suspects a person of

engaging in criminal activity. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868,

1880 (1968); Carmouche, 10 S.W.3d at 328.3 Reasonable suspicion exists

when, based on the totality of the circumstances, the officer has specific,

articulable facts that when combined with rational inferences from those facts,

would lead the officer to reasonably conclude that a particular person is, has

been, or soon will be engaged in criminal activity.     Ford, 158 S.W.3d at

492–93. This is an objective standard that disregards any subjective intent of

the officer making the stop and looks solely to whether an objective basis for

the stop exists. Id. at 492.




      3
       … Because a routine traffic stop typically involves only a short,
investigative detention, as opposed to a custodial arrest, we analyze traffic
stops under the principles developed for investigative detentions set forth in
Terry v. Ohio. 392 U.S. at 22, 88 S. Ct. at 1880; see Berkemer v. McCarty,
468 U.S. 420, 104 S. Ct. 3138 (1984); Martinez v. State, 236 S.W.3d 361,
369 (Tex. App.—Fort Worth 2007, no pet.).

                                      9
      a.    Section 545.060(a) of the Texas Transportation Code

      Officer Knotts testified that he stopped Appellant because he observed

Appellant failing to maintain a single lane of traffic. The relevant provision of

the transportation code—section 545.060(a)—provides as follows:

      (a)   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.

T EX. T RANSP. C ODE A NN. § 545.060(a) (Vernon 1999) (emphasis added).

      Although the statute has two subparts, it does not create two separate

offenses, but rather only one: moving out of a marked lane when it is not safe

to do so. Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.—Austin 1998,

pet. ref’d). In Hernandez, the Austin court analyzed the legislative history of

section 545.060 and determined that because neither section 545.060 nor its

predecessor created two offenses, the words “unless that movement can be

made safely” necessarily modify both subsections, adding,

      [T]he very vagueness of the requirement that the operator of a
      vehicle drive within a single lane “as nearly as practical” indicates
      that the legislature did not intend for the initial clause of the statute
      to create a discrete offense apart from some element of unsafety.
      This conclusion is bolstered by the use of the term “practical”


                                         10
      rather than “practicable.” The latter term has a somewhat more
      definite meaning: “capable of being accomplished; feasible;
      possible,” while the former term is more ambiguous: “manifested
      in practice; capable of being put to good use.” Bryan A. Garner, A
      Dictionary of Modern Legal Usage 678 (2d ed.1995).

Id.

      Thus, the Hernandez court held that a vehicle’s slow drift until two of its

tires crossed into another same-direction lane, at an hour when there were few

other cars about, did not give rise to a reasonable suspicion of criminal activity

because the State presented no evidence that the driver’s failure to drive in a

single lane was unsafe or dangerous. Id. at 869–70, 872. Many other courts

have reached the same conclusion under similar facts.        See, e.g., State v.

Huddleston, 164 S.W.3d 711, 713–14 (Tex. App.—Austin 2005, no pet.)

(holding officer lacked reasonable suspicion of violation of section 545.060

when he saw car slowly drift over fog line by a few inches five times over five

to six miles while traveling one to eight miles per hour under speed limit);

Eichler v. State, 117 S.W.3d 897, 898 (Tex. App.—Houston [14th Dist.] 2003,

no pet.) (holding no reasonable suspicion when car crossed line between middle

and fast lanes once on interstate highway in light traffic at 12:30 a.m.); Bass

v. State, 64 S.W.3d 646, 649–50 (Tex. App.—Texarkana 2001, pet. ref’d)

(holding no reasonable suspicion existed when car swerved within and outside



                                       11
its lane over two and one-half to three miles and was passed by other vehicles);

Corbin v. State, 33 S.W.3d 90, 94 (Tex. App.—Texarkana 2000), rev’d on

other grounds, 85 S.W.3d 272 (Tex. Crim. App. 2002) (holding no reasonable

suspicion existed when in course of twenty feet, defendant drove thirteen miles

per hour under speed limit and crossed over fog line once before driving one

mile with no further infractions); State v. Cerny, 28 S.W.3d 796, 798 (Tex.

App.—Corpus Christi 2000, no pet.) (holding no reasonable suspicion existed

when car “just barely” swerved into shoulder of lane of oncoming traffic, then

swerved over inside fog line three to four times); State v. Arriaga, 5 S.W.3d

804, 805 (Tex. App.—San Antonio 1999, pet. ref’d) (holding no reasonable

suspicion existed when van drifted toward center divider—but within lane—two

to seven times near nightclub around 1:50 a.m.); State v. Tarvin, 972 S.W.2d

910, 911 (Tex. App.—Waco 1998, pet. ref’d) (holding no reasonable suspicion

existed when car drifted over outside fog line two to three times at 2:00 a.m.

near nightclub).

      By contrast, in those cases where courts have held that a driver’s failure

to maintain a single lane triggered a reasonable suspicion that the driver had

violated section 545.060, the failure to drive in a single lane was coupled with

some other factor that indicated danger or a lack of safety, such as the driver’s



                                       12
leaving a bar, driving in heavy traffic, crossing into a lane of oncoming traffic,

or weaving over an extended distance or time. See, e.g., Tyler v. State, 161

S.W.3d 745, 746 (Tex. App.—Fort Worth 2005, no pet.) (holding reasonable

suspicion existed when police stopped driver after anonymous tip of erratic

driving and weaving in heavy traffic on Thanksgiving weekend); Cook v. State,

63 S.W.3d 924, 926–27 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)

(holding reasonable suspicion existed when car sped out of bar parking lot,

suspiciously pulled into gas station for ten to fifteen seconds, then drove “all

over” two unmarked roads before “constantly” crossing into other lane for

about two minutes on marked lane-divided road); Griffin v. State, 54 S.W.3d

820, 821 (Tex. App.—Texarkana 2001, pet. ref’d) (holding reasonable

suspicion existed when, after receiving informant tip that defendant would be

carrying heroin, officer saw defendant’s car cross yellow line into lane of

oncoming traffic); Martinez v. State, 29 S.W.3d 609, 610 (Tex. App.—Houston

[1st Dist.] 2000, pet. ref’d) (holding reasonable suspicion existed when car

drifted onto shoulder for only a few seconds, but on freeway during busy

traffic); Tex. Dep’t of Pub. Safety v. Bell, 11 S.W.3d 282, 282–83 (Tex.

App.—San Antonio 1999, no pet.) (holding reasonable suspicion existed when

car crossed into shoulder of lane of oncoming traffic); Gajewski v. State, 944



                                       13
S.W.2d 450, 451 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (holding

reasonable suspicion existed when on two-lane highway, one-third of car

crossed into oncoming lane two to three times).

      In this case, there is no evidence that Appellant’s failure to drive in a

single lane was unsafe. The specific facts articulated by Officer Knotts show

that two of Appellant’s tires drifted into an adjacent same-direction lane one

time and by no more than a tire’s width. There was no other vehicle in the lane

next to Appellant, and Officer Knotts expressly stated that the movement of

Appellant’s truck was not unsafe or dangerous. Absent from Officer Knott’s

testimony are any of the factors present in the cases cited above where courts

found a reasonable suspicion that a driver had violated section 545.060, such

as a driver’s crossing the center line into oncoming traffic.

      The State argues that because Officer Knotts believed that Appellant had

committed an act that Officer Knotts believed was prohibited by the

transportation code, he had reasonable suspicion to stop Appellant. The State

relies on a series of cases, some from this court, for the proposition that the

State is not required to prove a defendant violated a traffic law but only needs

to elicit testimony that the officer reasonably suspected that a defendant

violated a traffic law. See McQuarters v. State, 58 S.W.3d 250, 255 (Tex.




                                       14
App.—Fort Worth 2001, pet. ref’d); see also Garcia v. State, 43 S.W.3d 527,

530 (Tex. Crim. App. 2001).

       Officer Knotts testified that in his “understanding” of the transportation

code, a driver commits an offense merely by failing to maintain a single lane of

traffic and that if a driver intends to change lanes, he needs to signal that lane

change.4 There is no evidence that Appellant “changed lanes” or intended to

change lanes; thus, his failure to activate his turn signal could not provide a

reasonable suspicion for the stop. That leaves Officer Knotts’s “understanding”

of what constitutes a violation of section 545.060(a) as the only possible basis

for the stop. As our foregoing analysis of the statute and case law shows,

Officer Knotts’s understanding was wrong.

      An officer’s reasonable suspicion of an alleged traffic violation cannot be

based on a mistaken understanding of traffic laws. United States v. Granado,

302 F.3d 421, 423 (5th Cir. 2002); Goudeau v. State, 209 S.W.3d 713, 716

(Tex. App.—Houston [14th Dist.] 2006, no pet.). And an officer’s honest but

mistaken understanding of the traffic law which prompted a stop is not an

exception to the reasonable suspicion requirement. Goudeau, 209 S.W.3d at



      4
       … See T EX. T RANSP. C ODE A NN. § 545.104(a) (Vernon 1999) (“An
operator shall use the [turn] signal . . . to indicate an intention to turn, change
lanes, or start from a parked position.”).

                                        15
716. Thus, Officer Knotts’s misunderstanding that section 545.060(a) requires

only crossing of the lane line—regardless of whether it is unsafe or dangerous

to do so—will not support a reasonable suspicion.

      McQuarters and the other cases cited by the State do not change this

result. McQuarters cites Garcia for the proposition that “the State was not

required to prove appellant violated a traffic law. The State only needed to elicit

testimony that [the police officer] knew sufficient facts to reasonably suspect

that appellant had violated a traffic law.” 58 S.W.3d at 255. In the relevant

portion of Garcia, the court of criminal appeals stated that “[t]he State is

correct that it need not establish with absolute certainty that a crime has

occurred in order to show reasonable suspicion.” 43 S.W.3d at 530. Neither

case holds or even suggests that an officer’s ignorance of the law will

somehow satisfy the Fourth Amendment and rise to the level of reasonable

suspicion.   To so hold would transform the Fourth Amendment’s objective

standard into a subjective standard dependent on the whims of the police’s

“understanding” of the law.

      We hold that Officer Knotts failed to articulate specific facts that support

a reasonable suspicion that Appellant had violated section 545.060(a). See

Ford, 158 S.W.3d at 492–93. We therefore hold that there was no reasonable



                                        16
suspicion for the initial stop and that the trial court erred by failing to suppress

the evidence developed during the stop. We sustain Appellant’s second point.

      Because the State failed to carry its burden of showing a reasonable

suspicion, it also failed to carry the heavier burden to show probable cause for

the stop, and we sustain Appellant’s first issue. See Klare, 76 S.W.3d at 75.

                                    Conclusion

      Having sustained both of Appellant’s points, we reverse the trial court’s

judgment and remand this case to the trial court for further proceedings.




                                             ANNE GARDNER
                                             JUSTICE

EN BANC

MCCOY, J. filed a concurring opinion.

PUBLISH

DELIVERED: August 14, 2008




                                        17
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-06-183-CR


CHAD AVERY FOWLER                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                          STATE

                                    ------------

     FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

                                    ------------

                         CONCURRING OPINION

                                    ------------

      I agree with the result reached by the majority in this case but do not

agree with one aspect of their reasoning. As recounted by the majority, section

545.060(a) of the Transportation Code reads as follows:

      (a)   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.

T EX. T RANSP. C ODE A NN. § 545.060(a) (Vernon 1999). I cannot agree that the

phrase “unless that movement can be made safely” modifies both subsections

(1) and (2), as held by the majority, for the following reasons: (1) section (a)

is clearly separated into two discrete sections, (1) and (2), and the language in

question is clearly contained solely within the second section; (2) the separate

and independent nature of the sections is emphasized by the semicolon

separating the sections; (3) the term “movement” is clearly referring to the

word “move” three words before the phrase begins, and that word is not

contained in subsection (1); (4) if the phrase is added to the first subsection,

which it purports to modify, the initial subsection would read: “shall drive as

nearly as practical entirely within a single lane unless that movement can be

made safely”--this is jabberwocky.5

      Nevertheless, I reluctantly agree that section (a) of the Transportation

Code contains but one offense, enumerated as subsections (1) and (2), and that

the tsunami of case law requiring some other endangering factor, besides the




      5
       … See L EWIS C ARROLL, J ABBERWOCKY AND O THER P OEMS 17 (Courier Dover
Publications 2001).


                                       2
failure to drive in a single lane, to be a violation of the statute, is correct.

Hence, I concur in the outcome as determined by the majority.




                                                 BOB MCCOY
                                                 JUSTICE

PUBLISH

DELIVERED: August 14, 2008




                                       3
