Brandon Kurtis Jewell v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00418-CR
BRANDON KURTIS JEWELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY
TRIAL COURT NO. CCL2-12-0334
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MEMORANDUM OPINION1
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Appellant Brandon Kurtis Jewell appeals from the trial court’s denial of his
motion to suppress. We affirm.
Background Facts
On February 26, 2012, at approximately 2:30 a.m., Trooper Jacob Smith
was driving on Interstate 20 in Parker County, Texas. Behind him, he saw a car
1
See Tex. R. App. P. 47.4.
driven by Appellant that had blue headlights that “were probably bluer than the
lights on [his] emergency lights.” Smith believed that the lights were nonstandard
and in violation of federal and state law. After allowing the car to pass, Smith
observed the vehicle weave over the “fog line” separating the highway from the
improved shoulder at least twice.2
Smith stopped Appellant based on the traffic violations that he observed
and because he thought the driver might be sleepy or intoxicated. Appellant had
bloodshot, glassy eyes and smelled of alcohol. Appellant admitted to drinking
two or three beers that night, although Smith believed Appellant had drunk more
than that. Smith administered four field sobriety tests, determined that Appellant
was intoxicated, and arrested him.
During a jury trial, Smith testified that he pulled Appellant’s car over and
approached the vehicle. Appellant objected to any further testimony from Smith
on the ground that there was no probable cause or reasonable suspicion to pull
him over. The trial court overruled the objection. A jury found Appellant guilty of
driving while intoxicated (DWI), and the trial court sentenced Appellant to 180
2
The recording made by the patrol car camera during the traffic stop was
admitted into evidence as State’s Exhibit 1. This court has reviewed that
recording and confirmed that Appellant drove on the improved shoulder to the
right of the main traveled portion of the roadway. See Tex. Transp. Code Ann.
§ 545.058 (West 2011).
2
days jail time probated for 24 months, an $800 fine, court costs, community
service, and completion of Alcohol Education and Victim Impact programs.3
Appellant filed a notice of appeal and now contends in his sole issue that
the trial court erred in denying his oral motion to suppress because there was no
reasonable suspicion to stop him.
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).
We give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
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 v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State
v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When, as here, the
record is silent on the reasons for the trial court’s ruling, or when there are no
3
The punishment assessed was agreed to by the State, Appellant, and his
counsel.
3
explicit fact findings and neither party timely requested findings and conclusions
from the trial court, we imply the necessary fact findings that would support the
trial court’s ruling if the evidence, viewed in the light most favorable to the trial
court’s ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236,
241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then review the
trial court’s legal ruling de novo unless the implied fact findings supported by the
record are also dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.
Discussion
In his sole issue, Appellant argues that reasonable suspicion could not be
based on Smith’s observances of (1) his “fail[ing] to maintain a single lane of
traffic” and (2) his “bluer than normal headlights.”
A detention may be justified on less than probable cause if a person is
reasonably suspected of criminal activity based on specific, articulable facts.
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche v. State,
10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer conducts a lawful
temporary detention when he or she has reasonable suspicion to believe that an
individual is violating the law. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App.
2010); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). 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 him 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. This
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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.
Appellant argues that the State was required to establish the elements of a
traffic violation in order for the trial court to find that valid reasonable suspicion
existed to justify the stop. Specifically, Appellant argues that Smith’s testimony
could not support reasonable suspicion that he had violated section 545.060(a)
of the transportation code because the State did not prove that Appellant
unsafely moved out of his lane of traffic. See Tex. Transp. Code Ann.
§ 545.060(a) (West 2011) (stating that a driver may not move from his lane
unless the movement can be made safely); Fowler v. State, 266 S.W.3d 498,
503–04 (Tex. App.—Fort Worth 2008, pet. ref’d). Appellant’s argument, and the
cases cited in support thereof, all regard a stop made based on section
545.060(a). The officer in the instant case never testified that he was relying
upon section 545.060(a) as a basis for his stop; he testified that he witnessed
Appellant driving on the improved shoulder, which is a violation of section
545.058.4 Smith testified,
4
Texas Transportation Code section 545.058(a), entitled “Driving on
Improved Shoulder,” provides,
An operator 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:
(1) to stop, stand, or park;
5
Q. Okay. Was the driving that you saw a violation of Texas
law in itself?
A. Only when you drive over the shoulder. You can weave
around it in your lane, you just can’t cross the lines unless you use
your turn signal or you’re driving on the shoulder.
Q. This Texas law specified certain given situations where a
person can drive on a shoulder?
A. Yes, sir.
Q. And did you see any of those circumstances that existed at
that time?
A. No, sir.
Q. So you decided to pull the person over?
A. Yes, sir.
In the hearing outside the presence of the jury, the State argued that the stop
was legal for multiple reasons, none of which was a violation of section
(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.
Tex. Transp. Code Ann. § 545.058(a).
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545.060(a). The State said, “The officer also testified that this vehicle was driven
on the shoulder. And it clearly stated that was a violation of the law unless
certain circumstances existed, which he stated did not.”
Unlike section 545.060, section 545.058(a) prohibits a driver from driving
on an improved shoulder when doing so is not a necessary part of achieving one
of the seven approved purposes, even when driving on the shoulder may be
done safely. See State v. Munsey, 424 S.W.3d 767, 773 (Tex. App.—Fort Worth
2014, no pet.); Thomas v. State, 420 S.W.3d 195, 200 (Tex. App.—Amarillo
2013, no pet.) (holding that the traffic offense of driving on the improved shoulder
supports an initial detention of a driver); State v. Lockhart, No. 07-04-00304-CR,
2005 WL 1838457, at *3 (Tex. App.—Amarillo Aug. 2, 2005, no pet.) (not
designated for publication) (same); Tyler v. State, 161 S.W.3d 745, 748–49 (Tex.
App.—Fort Worth 2005, no pet.) (holding that traveling on the shoulder was
independently sufficient to provide probable cause to stop the driver). Nothing in
this record shows that Appellant’s driving on the improved shoulder was
necessary to achieve one of the seven approved purposes, even if he was
driving safely on the shoulder. See Munsey, 424 S.W.3d at 773. Smith
articulated specific facts that support reasonable suspicion that Appellant violated
section 545.058(a) and, therefore, the trial court did not err by denying
Appellant’s oral motion to suppress.
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Furthermore, the testimony establishes reasonable suspicion of driving
while intoxicated. The court of criminal appeals has explained the standard for
warrantless traffic stops thusly:
A law enforcement officer may stop and briefly detain a person
for investigative purposes on less information than is constitutionally
required for probable cause to arrest. Terry, 392 U.S. at 21. In
order to stop or briefly detain an individual, an officer must be able to
articulate something more than an “inchoate and unparticularized
suspicion or ‘hunch.’” Id. Specifically, the police officer must have
some minimal level of objective justification for making the stop, i.e.,
when the officer can “point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably
warrant [the] intrusion.” Id. The reasonableness of a temporary
detention must be examined in terms of the totality of the
circumstances.
....
. . . [T]ime of day is a relevant factor in determining
reasonable suspicion. . . . Similarly, . . . location near a bar district
where police have made numerous DWI arrests is also a relevant
factor in determining reasonable suspicion.
Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (some citations
omitted). Thus, an officer may stop a driver based on a reasonable suspicion of
DWI even when the driver has not violated a traffic law and has not endangered
other drivers. See James v. State, 102 S.W.3d 162, 171–72 (Tex. App.—Fort
Worth 2003, pet. ref’d) (distinguishing stops made based “only upon observation
of a traffic offense” from those in which the officer believes a driver might be
impaired, such as by intoxication); Cook v. State, 63 S.W.3d 924, 929 (Tex.
App.—Houston [14th Dist.] 2002, pet. ref’d).
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Smith testified that he decided to stop Appellant’s vehicle after he saw
Appellant repeatedly drive over the fog line because he “thought possibly this
person was pretty sleepy and needed to be woke[n] up or may be intoxicated.”
He testified that he witnessed Appellant’s driving around 2:30 in the morning. He
also stated that it was illegal to cross lane lines without using a turn signal or to
drive on the shoulder unless under specific circumstances, none of which were
present at the time of the stop.
These facts, given the totality of the circumstances and viewed in the light
most favorable to the trial court’s ruling, support the trial court’s conclusion that
Smith had reasonable suspicion to stop Appellant. See Curtis v. State, 238
S.W.3d 376, 381 (Tex. Crim. App. 2007) (holding that a rational inference from
observing a car “weaving in and out of his lane several times, over a short
distance, late at night” was that the driver was intoxicated and that such
circumstances justified an investigative stop); Dunkelberg v. State, 276 S.W.3d
503, 506–07 (Tex. App.—Fort Worth 2008, pet. ref’d) (holding that stop based on
suspicion of DWI was reasonable based on “the manner in which the vehicle was
operated in conjunction with the time of night”); James, 102 S.W.3d at 172
(“Erratic or unsafe driving may furnish a sufficient basis for a reasonable
suspicion that the driver is intoxicated even absent evidence of violation of a
specific traffic law.”); McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.—Fort
Worth 2001, pet. ref’d) (holding that officer’s suspicion that driver was falling
asleep or intoxicated was reasonable based on observations of driver driving
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slowly and twice crossing the lane stripe even “assuming Officer Beauchamp’s
testimony may not have established a reasonable suspicion that appellant had
violated a traffic law”). We therefore hold that the trial court did not err by
denying Appellant’s oral motion to suppress. We overrule Appellant’s sole issue.
Conclusion
Having overruled Appellant’s sole issue, we affirm the trial court’s
judgment.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 10, 2014
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