                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00375-CR


THE STATE OF TEXAS                                                      STATE

                                       V.

LINDSEY NICHOLE HOUGHTON                                           APPELLEE


                                    ----------

      FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY

                                    ----------

                                  OPINION

                                    ----------

                                I. Introduction

      The State appeals from the trial court’s written order granting Appellee

Lindsey Nichole Houghton’s motion to suppress evidence. The State argues in

two points that the trial court erred by granting Houghton’s motion to suppress

because reasonable suspicion supported the traffic stop of Houghton’s vehicle.

Houghton has not filed a brief on appeal. We affirm.
                                 II. Background

      Houghton was charged with driving while intoxicated and filed a written

motion to suppress. Officer Mark Epps was the only witness who testified at the

suppression hearing. The State and Houghton stipulated that the scope of the

hearing was the validity of the traffic stop. The trial court also watched the video

recording from Officer Epps’s in-car camera.

      Officer Epps testified that he has been a certified peace officer with the

University of Texas at Arlington Police Department since December 2008 and

that he had undergone “special training pertaining to DWI investigations” and

“detecting signs that a person’s intoxicated.” He did not otherwise explain the

nature of his training.

      Officer Epps testified that he worked the third shift on January 15, 2011,

that he was in uniform and in a marked patrol unit, and that there are known

drinking establishments in the area.          Officer Epps testified that he was

conducting radar enforcement and sitting stationary in his vehicle when he first

noticed Houghton’s vehicle. He could not remember what drew his attention to

Houghton’s vehicle but testified, “[I]t was probably just going to be excessive

speed over 35.       I can’t remember.”       He also testified that he observed

Houghton’s vehicle “weaving from the left to right within the lane.”1



      1
        This portion of Officer Epps’s observation of Houghton’s vehicle is not
reflected on the video recording.


                                          2
      Officer Epps testified that he began following Houghton’s vehicle and that

he saw her “swerving.” He also stated, “The defendant, she was driving a silver

Ford Mustang. When I got behind the vehicle, it immensely slowed its speed.

Then I observed the vehicle swerving from left to right and then it drove left of

center in about the 300 block of South Cooper Street.”

      After the trial court admitted Officer Epps’s in-car video recording, which

reflects that he stopped Houghton at 3:16 a.m., Officer Epps described what was

depicted on the video as follows: “[T]he vehicle, when it came through the 300

block of South Cooper Street, it drove left of the center line, the yellow line, and it

failed to make a left turn, and it came back into the lane closest to the center

while driving northbound.” Officer Epps further testified that weaving can indicate

impairment and that “[g]iven the time of night and the -- the vehicle slowing down

and swerving before, it usually, in my opinion, indicates intoxication.” Officer

Epps agreed in response to questioning by the prosecutor that a vehicle weaving

on a street after 2:00 a.m. on Saturday morning can be evidence of impairment.

      On cross-examination, Officer Epps testified that he did not see Houghton

leaving any bar on Cooper Street and that he could not recall how far Houghton’s

vehicle was from his location when he first observed it. Officer Epps agreed that

Houghton’s vehicle had remained within its lane when he saw it weaving before

he turned on his recording device. He explained that “it was because she drove

left of center which is what gave me probable cause to pull the vehicle over,” but




                                          3
he also stated that the tire of Houghton’s vehicle touched but did not cross the

center line. This exchange followed:

            Q. Okay. And it touched the line, and about how far of a
      distance did you follow the defendant’s vehicle, would you estimate?

            A. Approximately, six blocks.

            Q. Okay. And you’re saying that her tire touched the line one
      time in six blocks and you believe that gave you reasonable
      suspicion to make the stop?

            A. Yes, sir.

      The State then questioned Officer Epps as follows:

            Q. Officer Epps, I just want to clarify. Can you tell us what --
      can you tell us what circumstances you took into consideration when
      you made the decision to pull the defendant over?

             A. Yes. It was the -- on the day, the time of night, and Cooper
      Street is generally known for having vehicles using it as a means to
      get home quickly. Usually, my experience is for people who are
      intoxicated at that time of night, will do -- who move within their lanes
      or within a lane and then cross left of center and drive on the other
      side of the road.

            Q. So did you take the totality of the circumstances into
      consideration that the defendant could possibly be impaired?

            A. Yes, ma’am.

      The trial court granted Houghton’s motion to suppress at the conclusion of

the hearing. The trial court also denied the State’s motion to reconsider but

granted the State’s requests for findings of fact and conclusions of law and for

“specific findings” and “conclusions addressing evidence.” The trial court’s first

set of factual findings largely recite Officer Epps’s testimony and we thus do not



                                         4
repeat them here.2      The trial court’s conclusions of law, which include a

determination that Officer Epps’s testimony was not credible, are as follows:

             1.    The initial observation of the defendant’s vehicle on
             South Cooper Street did not involve a traffic violation, insofar
             as the officer stated he could not remember if the defendant’s
             vehicle was speeding.

             2.     The detention of the vehicle by the officer based on the
             testimony elicited, and the DVD evidence presented was not
             based on reasonable suspicion or probable cause, as the
             court did not find the officer’s testimony to be credible, based
             on his lack of memory of the incident, and his poor skill at
             recounting the event. The testimony of the officer was more
             an agreement with the prosecutor, rather than the officer
             stating in his own words that he reached the conclusions
             arriving at reasonable suspicion or probable cause that served
             as the basis for the stop himself, supported by his own
             observations.

             3.     The defendant was under temporary detention at the
             time the vehicle was stopped and she was approached by
             Officer Epps.

             4.   The temporary detention was not lawful, as it was not
             subsequent to a lawful traffic stop.

             5.    Any evidence obtained subsequent to the unlawful
             detention should be suppressed.

      The trial court also made additional findings, indicating on an order

prepared by the State that it made the following additional findings of fact:3

      2
        The trial court did include one finding of fact concerning the prosecutor’s
and officer’s preparedness for the hearing on the motion to suppress, but that
fact finding is not material to the disposition of this appeal and we do not address
it.
      3
        These additional findings are not consecutively numbered because the
trial court did not adopt each of the State’s proposed additional findings.


                                          5
            a.      Based upon the trial court’s previous finding regarding
            Officer Epps’ credibility, the trial court specifically disbelieved
            all of the testimony of the officer.

            e.    The court further specifies that the State’s evidence
            showed that the temporary detention of Defendant Houghton’s
            vehicle was not supported by reasonable suspicion or
            probable cause because the officer’s testimony was wholly
            incredible.

            f.    The court further specifies that the State’s evidence
            showed that the temporary detention of Defendant Houghton’s
            vehicle was not supported by reasonable suspicion or
            probable cause because the officer’s testimony was incredible
            pertaining to Defendant Houghton’s driving behavior.

            g.    The court further specifies that the State’s evidence
            showed that the temporary detention of Defendant Houghton’s
            vehicle was not supported by reasonable suspicion or
            probable cause because the officer’s testimony regarding the
            reasons for stopping Defendant Houghton’s vehicle were not
            credible.

            h.    The court further specifies that the State’s evidence
            showed that the temporary detention of Defendant Houghton’s
            vehicle was not supported by reasonable suspicion or
            probable cause because the officer’s testimony was not
            credible with respect to any possible speeding violation.

                            III. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); 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



                                         6
judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). 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.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

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

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). 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 fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court’s legal ruling de novo unless its explicit fact




                                           7
findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818.

      The State argues that we are not required in this case to give almost total

deference to the trial court’s factual determinations because witness credibility

and demeanor are not at issue with the video recording and because the video

recording contradicts the trial court’s factual determinations.       The court of

criminal appeals has held, however, that “a trial court’s determination of historical

facts based on a videotape recording is still reviewed under a deferential

standard.” Carter v. State, 309 S.W.3d 31, 40 (Tex. Crim. App. 2010); Montanez,

195 S.W.3d at 109; see also State v. Gobert, 275 S.W.3d 888, 891–92 & n.13

(Tex. Crim. App. 2009). Cf. Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim.

App. 2000) (noting bifurcated standard of review that requires “almost total

deference to a trial court’s determination of the historical facts that the record

supports” but declining to give that level of deference in that case because “the

videotape present[ed] indisputable visual evidence contradicting essential

portions of [the officer’s] testimony”). We thus give almost total deference to the

trial court’s factual determinations unless the video recording indisputably

contradicts the trial court’s findings. Compare Carter, 309 S.W.3d at 40, with

Carmouche, 10 S.W.3d at 332.

                               IV. Applicable Law

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at


                                         8
24. 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. Amador, 221 S.W.3d at 672; see Young

v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015

(2009). A defendant satisfies this burden by establishing that a search or seizure

occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant

has made this showing, the burden of proof shifts to the State, which is then

required to establish that the search or seizure was conducted pursuant to a

warrant or was reasonable. Id. at 672–73; 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 law enforcement officer may lawfully stop a motorist when the officer has

probable cause to believe that the motorist has committed a traffic violation.

Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000). However, a police

officer may also lawfully stop a motorist when, based on the totality of the

circumstances, he has reasonable suspicion for a temporary investigation on less

than probable cause if the officer has specific articulable facts that, combined

with rational inferences from those facts, would lead him reasonably to conclude

that the person is, has been, or soon may be engaged in criminal activity.

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App.), cert. denied, 132

S. Ct. 150 (2011) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880

(1968)); Carmouche, 10 S.W.3d at 328. “Reasonable suspicion” is an objective


                                        9
standard that disregards any subjective intent or motivation of the officer making

the stop and looks solely to whether an objective basis for the stop exists. 4 Ford,

158 S.W.3d at 492; see Derichsweiler, 348 S.W.3d at 914. To satisfy the

standard of reasonable suspicion, the articulable facts need not lead inexorably

to a conclusion that a particular penal code offense is imminent. Derichsweiler,

348 S.W.3d at 916–17. It is enough to satisfy the standard that the information is

sufficiently detailed and reliable to support more than an “inarticulate hunch” that

something of an apparently criminal nature is brewing. Id. at 917.

                                     V. Discussion

      The State contends in its two points that the trial court’s legal conclusion

concerning the lack of reasonable suspicion is erroneous and that the trial court’s

factual determinations constitute an abuse of discretion because they contradict

the “objective” evidence shown on Officer Epps’s in-car video recording.

Specifically, the State argues that the video recording shows two traffic violations

as well as other erratic driving.5


      4
         “Reasonable suspicion” examines whether there was an objective
justification for the detention. State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim.
App. 2011). The subjective intent or motive of the detaining officer is disregarded
in this analysis. Id.; see also Wiede, 214 S.W.3d at 25 (in considering legitimacy
of detention, “[t]he subjective intent or motivations of law enforcement officials is
not taken into account”).
      5
       The State uses the term “objective” with reference to the facts shown by
the video twenty-four times in its brief, confusing the requirement of articulable
facts upon which an officer relied in determining that a traffic stop was justified
with the objective standard the court must apply of whether a reasonable officer
would have relied upon those facts in making the stop. It is the standard for

                                          10
      We first consider the State’s contentions concerning traffic code violations.

See Walter, 28 S.W.3d at 542 (holding that a law enforcement officer may

lawfully stop a motorist when the officer has probable cause to believe that the

motorist has committed a traffic violation); Garcia v. State, 827 S.W.2d 937, 944

(Tex. Crim. App. 1992) (holding that an officer may lawfully stop and reasonably

detain a person for a traffic violation). The State asserts that the video recording

shows that Houghton violated transportation code section 545.060. The State

does not, however, clarify whether it relies on section 545.060(a) or (b), explain

how Houghton allegedly violated section 545.060, or cite any authority that would

compel the conclusion that Houghton violated section 545.060. Even so, given

Officer Epps’s testimony, we presume that the State relies on section 545.060(a),

which provides that “[a]n operator on a roadway divided into two or more clearly

marked lanes for traffic: (1) shall drive as nearly as practical entirely within a

single lane; and (2) may not move from the lane unless that movement can be

made safely.” Tex. Transp. Code Ann. § 545.060(a) (West 2011) (emphasis

added); see Fowler v. State, 266 S.W.3d 498, 502, 504 (Tex. App.—Fort Worth

2008, pet. ref’d) (en banc) (summarizing section 545.060(a) as prohibiting

movement “out of a marked lane when it is not safe to do so”).

determining reasonableness that is “objective,” not the facts testified to by the
officer, as discussed below. Likewise, the State is mistaken in arguing that this
Court is not bound by the trial court’s findings that contradict the “historical facts”
shown by the video. The relevant “historical facts” relied upon by the officer in
making the stop are not those in the video, which he did not review until long
after the stop but those which he testified he relied upon in making the stop.


                                          11
      Our review of the video recording confirms that the left-side tires of

Houghton’s vehicle briefly touched but did not cross the double-yellow line

approximately forty-two seconds after the recording began. The State, however,

presented no evidence at the suppression hearing that this maneuver was

performed in an unsafe manner.        Officer Epps testified only that Houghton’s

vehicle “drove left of the center line, the yellow line, and it failed to make a left

turn, and it came back into the lane closest to the center while driving

northbound.” He did not elaborate as to any articulable facts that he observed

that would support a finding that Houghton made the maneuver in an unsafe

manner. See Ford, 158 S.W.3d at 493 (holding officer’s conclusory testimony

that motorist was following too closely failed to present specific, articulable facts

to support traffic violation of “following too closely”); Fowler, 266 S.W.3d at 504

(addressing section 545.060(a) and holding that absent any testimony by officer

of busy traffic or other factors indicating unsafe maneuver such as crossing over

into oncoming traffic, there was no evidence that the “failure to drive in a single

lane was unsafe”). The video recording likewise does not “indisputably” show

that Houghton’s vehicle failed to maintain a single lane in an unsafe manner,

unlike the video in Carmouche, in which the court of criminal appeals declined to

defer to the trial court’s determination of historical facts where “indisputable

visual evidence” shown in the video contradicted the officer’s testimony. See 10

S.W.3d at 332. One other car appears on the video near the time Houghton’s

vehicle touched the double-yellow line, but that car does not appear to have been


                                         12
in proximity to Houghton’s vehicle. Without explanation from Officer Epps as to

observations by him as to why Houghton’s maneuver was unsafe (and thus in

violation of transportation code section 545.060(a)), we cannot say that the stop

of Houghton’s vehicle was justified solely based on an alleged violation of section

545.060. See Ford, 158 S.W.3d at 493; Fowler, 266 S.W.3d at 504 (noting

absence of evidence that traffic maneuver was performed in unsafe manner and

stating that “[a]n officer’s reasonable suspicion of an alleged traffic violation

cannot be based on a mistaken understanding of traffic laws.”).

      The State also argues that the video recording shows a violation of

transportation code section 544.004 because Houghton drove her vehicle

“across the lined demarcation for a designated left-turn lane.” First, the State did

not raise this section 544.004 argument until its motion for reconsideration.

Nothing in the record suggests that Officer Epps observed before the traffic stop

that Houghton allegedly violated section 544.004 by crossing the white line

separating the left-turn lane from the regular lane of traffic. Officer Epps did not

mention it during any portion of his testimony, nor did the State question Officer

Epps about the movement into the left-turn lane during the suppression hearing.

Moreover, the State did not argue at the suppression hearing that the movement

into the left-turn lane constituted a traffic violation that gave Officer Epps either

probable cause or reasonable suspicion to stop Houghton’s vehicle or even that

crossing the white line was one of the articulable facts relied upon by the officer

that the trial court should consider as part of the totality of the circumstances.


                                          13
      In a very similar case that also involved a video recording of the events

leading to the stop of a defendant’s vehicle, our sister court recently held that

because the officer “was not consciously aware of any signaling violation” at the

time of the stop, the court could not include the alleged traffic violation as “part of

the objective calculus” it considered for determining whether reasonable

suspicion supported the traffic stop. State v. Smith, Nos. 05-11-00742-CR, 05-

11-00743-CR, 2012 WL 1059703, at *4–5 (Tex. App.—Dallas Mar. 30, 2012, pet.

ref’d) (not designated for publication) (affirming order granting motion to

suppress). In Smith, the State even questioned the officer about the alleged

signaling violation during the suppression hearing. Id. Here, neither the State

nor Officer Epps mentioned or alluded to an alleged violation of section 544.004

at any time during the hearing. Thus, we will not consider the post hoc argument

of the State regarding the alleged violation of section 544.004 as an independent

basis to support the stop of Houghton’s vehicle nor even as a factor to consider

as part of the totality of the circumstances establishing reasonable suspicion as

the basis for the stop.

      To establish reasonable suspicion, the state must show that, at the time of

the detention, the officer had specific, articulable facts that established

reasonable suspicion. Terry, 392 U.S. at 21–22, 88 S. Ct. 1868, 1880 (holding

that in justifying the particular intrusion, “the facts [must] be judged against an

objective standard: would the facts available to the officer at the moment of the

seizure or the search ‘warrant a man of reasonable caution in the belief’ that the


                                          14
action taken was appropriate?” (emphasis added)); Martinez v. State, 348

S.W.3d 919, 924 (Tex. Crim. App. 2011) (holding anonymous tip that provided no

identification to dispatch, was not shown to have maintained contact with

dispatch, did not follow suspect vehicle, was not present at scene before the

stop, and arrived at scene and provided officer with identifying information only

after the stop, was not sufficient, stating “the reasonableness of official suspicion

must be measured by what the officers knew before they conducted their search;

reasonable suspicion cannot be obtained retroactively.” (emphasis added)

(citations omitted)); St. George v. State, 237 S.W.3d 720, 726 (Tex. Crim. App.

2007) (noting holding in Terry that “an officer’s actions [in effecting a detention]

must be justified at its inception” and holding passenger’s providing of a false

name when officers did not know it was false could not give them reasonable

suspicion to investigate further when driver had already been issued a warning

citation and purpose for stop had ended).

      Generally, law enforcement action can only be supported by facts the

officer was “actually aware of at the time of that action.” State v. Ruelas, 327

S.W.3d 321, 326–27 (Tex. App.―El Paso 2010, pet. ref’d). As stated by the

court in Ruelas, “The preference for objective standards, however, does not

apply to the facts on which officers act.” Id. at 326 (holding officer lacked

reasonable suspicion where it was not until suppression hearing when state was

questioning motorist defendant that officer learned of facts suggesting he violated

traffic code by making left turn into right-hand lane); Swaffar v. State, 258 S.W.3d


                                         15
254, 258 (Tex. App.—Fort Worth 2008, pet. ref’d) (declining to consider stop sign

violation in determining whether reasonable suspicion supported traffic stop

because officer first learned of facts suggesting violation upon later reviewing in-

car videotape); State v. Griffey, 241 S.W.3d 700, 703–04 (Tex. App.―Austin

2007, pet. ref’d) (holding reasonableness of detention determined in terms of

totality of circumstances “at its inception” and court looks “only at those facts

known to the officer at the inception of the stop”); see also United States v.

Lewis, 672 F.3d 232, 237–38 (3d Cir. 2012) (stating that “ex post facto

justifications are impermissible” and holding that government could not rely on

defendant’s illegal window-tinting in absence of evidence that defendant was

stopped for illegal window tint); see generally Florida v. J.L., 529 U.S. 266, 271,

120 S. Ct. 1375, 1379 (2000) (“The reasonableness of official suspicion must be

measured by what the officers knew before they conducted their search.”).6




      6
        See also United States v. Brewer, 561 F.3d 676, 677–78 (7th Cir. 2009)
(stop of vehicle could not be justified by information obtained post-stop that shots
had been fired earlier from that vehicle); United States v. Simmons, 560 F.3d 98,
107 (2d Cir. 2009) (holding grounds for seizure must exist at the time of the
stop); United States v. Wright, 485 F.3d 45, 51 (1st Cir. 2007) (holding court must
determine whether officer had reasonable suspicion at the time he began the
stop); Laime v. State, 347 Ark. 142, 157, 60 S.W.3d 464, 474 (2001) (holding
after-acquired knowledge by officer irrelevant; “only what the police officer knew
at the time of [the stop]” may be considered); Baptiste v. State, 995 So.2d 285,
295–96 (Fla. 2008) (holding officers must possess reasonable suspicion “at the
time” of a seizure); State v. Joyce, 159 N.H. 440, 446–47, 986 A.2d 642, 648
(2009) (no reasonable suspicion based on information acquired by police after
seizure).


                                        16
      Additionally, the video recording does not “indisputably” show a violation of

transportation code section 544.004, as contended by the State on appeal. That

section requires an operator to comply with “applicable official traffic-control

device[s].” Tex. Transp. Code Ann. § 544.004 (West 2011). The video reflects

that, although Houghton’s vehicle crossed the solid white stripe that marks the

right boundary of the left-turn lane, Houghton signaled a lane change, moved her

vehicle into the left-turn lane, and waited for an approaching car to clear the

intersection before turning left. This case is thus distinguishable from Kortemier

v. Texas Department of Public Safety, No. 05-08-01182-CV, 2009 WL 1959256,

at *3 (Tex. App.—Dallas July 9, 2009, no pet.) (mem. op.), in which the court

observed that the defendant violated section 544.004 “by failing to turn right from

a right-turn-only lane marked by a solid white stripe.” Here, Houghton signaled

her intention to turn and turned left from the left-turn lane. Even assuming that

the solid white stripe is “a traffic control device within the meaning of section

544.004, the State cites no authority that defines [its] purpose or what constitutes

a failure to comply with [it].” State v. Palmer, No. 02-03-00526-CR, 2005 WL

555281, at *3–4 (Tex. App.—Fort Worth Mar. 10, 2005, pet. dism’d) (mem. op.,

not designated for publication) (addressing alleged violation of section 544.004

as shown by video evidence and holding no reasonable suspicion of section

544.004 violation by touching tire to a portion of double-white lines). The State

has therefore failed to establish that Houghton’s crossing the solid white stripe as

part of her movement into the left-turn lane provided Officer Epps with


                                        17
reasonable suspicion or probable cause that would have justified his stop of

Houghton’s vehicle.

      Because the video recording does not clearly show that Houghton

committed a traffic violation, we next consider whether sufficient specific,

articulable facts justified the stop of Houghton’s vehicle. The video recording

reflects that Officer Epps initiated his in-car recording device at 3:14 a.m. and

followed Houghton’s vehicle for approximately one minute and forty seconds

before turning on his overhead lights. As the recording begins, Officer Epps

drove his vehicle forward and turned right onto Cooper Street.       Officer Epps

accelerated toward Houghton’s vehicle and began following her.          Forty-two

seconds into the recording, the left-side tires of Houghton’s vehicle touched the

double-yellow center-stripe, but the vehicle moved slowly back to the middle of

the left-hand lane; the movement away from the center stripe was not jerky or

fast. After another approximately fifteen seconds, Houghton signaled a left-hand

turn and moved her vehicle into the separately-marked left-hand turn lane.

Houghton’s vehicle came to an almost complete stop at the intersection (the light

was green) as she waited for an oncoming vehicle to exit the intersection. Her

vehicle then turned left onto the cross-street. Officer Epps followed Houghton for

another approximately twenty seconds before initiating his overhead lights.

Contrary to Officer Epps’s testimony, Houghton’s vehicle did not obviously weave

within its lane, other than when the tires touched the center lane on one

occasion.


                                       18
      The facts of this case are similar to two others in which reviewing courts

affirmed the trial court’s grant of the defendant’s motion to suppress. See State

v. Hanrahan, No. 10-11-00155-CR, 2012 WL 503658, at *1 (Tex. App.—Waco

Feb. 15, 2012, no pet.) (mem. op., not designated for publication); State v.

Rothrock, No. 03-09-00491-CR, 2010 WL 3064303, at *1 (Tex. App.—Austin

Aug. 5, 2010, no pet.) (mem. op., not designated for publication). In Rothrock,

the officer stopped Rothrock after seeing “Rothrock leaving a bar at 2:30 a.m.,

accompanied by a large cloud of dust” and observing Rothrock “weave within his

lane and briefly cross over the left fog line.” 2010 WL 3064303, at *1. The court

noted that the video evidence did not resolve the dispute concerning the alleged

traffic violation (impermissibly driving on an improved shoulder) and held that the

video therefore did not support a conclusion that the officer had reasonable

suspicion of a traffic violation. Id. at *3. The court further held that the State, by

pointing to evidence that Rothrock left a bar at 2:30 a.m., caused a cloud of dust

as he drove away, weaved within the lane, and briefly crossed the fog line, did

not carry its appellate burden of showing that the trial court abused its discretion

by granting Rothrock’s motion to suppress. Id. at *2.

      In Hanrahan, the officer saw Hanrahan driving at 1:00 a.m. and noticed

that her vehicle swerved from side to side within its lane before crossing the fog

line that marked the improved shoulder. 2012 WL 503658, at *1. The officer

testified at the suppression hearing that crossing the fog line was a traffic

violation. Id. Affirming the trial court’s grant of Hanrahan’s motion to suppress,


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the court stated that the officer was unable to clearly explain how Hanrahan

crossed the fog line and that the video “failed to clearly show a [traffic] violation.”

Id. at *5. The court then stated,

      While in some instances an officer’s observation of a violation of the
      transportation code unequivocally establishes a violation of the law
      justifying a traffic stop, in this case, the trial court was able to not
      only consider the testimony of Officer Bell, but it also was able to
      consider the video recording of the incident. And in granting
      appellee’s motion to suppress, the trial court clearly did not believe
      the testimony of Officer Bell, and it did not believe that the videotape
      conclusively demonstrated a violation of the transportation code.
      Essentially, the determination of whether Officer Bell had reasonable
      suspicion to stop appellee turned on the trial court’s evaluation of
      Officer Bell’s credibility and an evaluation of the video recording
      within the context of Officer Bell’s testimony. In such instances, we
      afford “almost total deference” to the trial court’s conclusions.
      Furthermore, because the trial court entered fact findings stating that
      it did not believe that a traffic violation occurred, we must review the
      fact findings in a light most favorable to the trial court’s ruling.

Id. (citations omitted).

      Applying the appropriate standard of review and giving almost total

deference to the trial court’s factual determinations where appropriate, we hold

that the State has not demonstrated that the trial court erred by granting

Houghton’s motion to suppress. The record, viewed in the light most favorable to

the trial court’s ruling, does not reflect sufficient specific, articulable facts that

when combined with rational inferences from those facts, would have led Officer

Epps to reasonably conclude that Houghton was, had been, or soon would be




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engaged in criminal activity. We therefore overrule the State’s first and second

points.7

                                  VI. Conclusion

         Having overruled each of the State’s points, we affirm the trial court’s

order.




                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

LIVINGSTON, C.J., concurs without opinion.

PUBLISH

DELIVERED: October 25, 2012




         7
        The State’s amended brief includes a request for abatement and limited
remand for precise factual findings concerning the alleged traffic violations
discussed above. See State v. Mendoza, 365 S.W.3d 666, 672–73 (Tex. Crim.
App. 2012). Without addressing the propriety of adding this additional request for
relief without first obtaining this court’s permission, see Tex. R. App. P. 38.7, we
decline to abate for additional findings of fact. We do not find the type of
inconsistency within the trial court’s findings that were present in Mendoza, and
we note that the State presented the trial court with eleven proposed “Specific
Findings and Conclusions,” some of which were adopted by the trial court. None
of those proposed additional findings addressed the alleged traffic violations
upon which the State focuses on appeal and for which the State now requests
abatement.


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