RICKEY DEWAYNE ABNEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed July 20, 2011.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00260-CR
............................
RICKEY DEWAYNE ABNEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 2
Kaufman County, Texas
Trial Court Cause No. 09CL-0686-2
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OPINION
Before Justices Murphy, Fillmore, and Myers
Opinion By Justice Myers
        Appellant, Rickey Dewayne Abney, was convicted of possession of marijuana and sentenced to fifteen days in the county jail. In one issue, he argues the trial court erred by denying his pretrial motion to suppress. We affirm.
Background and Procedural History
        Kaufman County Sheriff's deputy Billy Kilgore testified at the suppression hearing that, on October 11, 2008, between the hours of 6:00 a.m. and 6:00 p.m., he was on “routine patrol” on Highway 175, “stopping traffic violators.” He was in uniform and patrolling in a marked police vehicle. At approximately 9:40 a.m., Kilgore was parked alongside the eastbound side of Highway 175, near a store that is across the street from an “M & M Exxon,” when he saw a black Mercury Cougar traveling east on Highway 175. The vehicle was “driving in the left lane while not passing.” He pulled onto the highway behind the vehicle and followed it for approximately a mile when he saw it “cut across the crossover coming back,” and then move over to the “westbound side” of the highway. Kilgore described that stretch of road as straight, and he noted the suspect was not passing any other vehicles and, to his recollection, there were no vehicles in the right-hand lane. Kilgore activated his emergency lights and pulled over the vehicle, which was driven by appellant. Kilgore testified that he intended to identify the driver of the vehicle and issue a “citation or warning.” Appellant was arrested and charged with possessing under two ounces of marijuana.   See Footnote 1 
        Kilgore testified that there are two signs alongside Highway 175 in Kaufman County warning that the left lane is for passing only. Those signs are posted on either end of Kaufman County by the side of Highway 175, both “as you're coming into Seagoville and then also as you're coming into the Mabank area.” Kilgore identified State's exhibit one as a photograph of the sign that is located alongside the eastbound side of Highway 175, near Seagoville. The sign warns, “Left Lane For Passing Only.” Kilgore estimated this sign was “probably” fifteen to twenty miles from the place where he stopped appellant.
        Kilgore acknowledged that it is legal to make a left turn or a U-turn on the crossover lanes at the place where he stopped appellant. But he testified that appellant's driving was not consistent with someone making a left turn because appellant drove past “probably three to four” “crossovers” by the side of the highway without turning. Kilgore also acknowledged that there was no “left lane for passing only” sign alongside the one mile stretch of road where he saw appellant driving in the left lane without passing. Kilgore testified that he would have stopped any driver traveling in the left lane who was not passing “with the assumption that they [were] coming from” the location of one of the two “left lane for passing only” signs. “If it was determined otherwise,” Kilgore stated, he “would have . . . issued them a warning and . . . sent them on their way.”
        Appellant presented testimony from David Miller, an investigator with the public defender's office. Miller testified that he believed the “left lane for passing only” sign that faced the eastbound traffic on Highway 175 was approximately twenty-seven miles from the location where appellant was stopped. Miller did not know how far Kilgore could have observed the eastbound traffic from the place where Kilgore's vehicle was parked.
        The trial court denied appellant's motion to suppress, and filed findings of fact and conclusions of law. The trial court found Kilgore's testimony to be credible and concluded he had reasonable suspicion to stop appellant because appellant “was driving his vehicle in the left lane without passing another vehicle.” Appellant subsequently pleaded nolo contendere to the marijuana possession charge and was sentenced by the court to fifteen days in the county jail. This appeal followed.
Discussion
        Appellant argues the trial court erred by denying his pretrial motion to suppress, which alleged an unlawful traffic stop. Appellant phrases the issues before us as follows: “Can driving in the left lane without passing be a traffic violation if there is no sign prohibiting the conduct at the time and place of the alleged violation?”
        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 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). Thus, 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 does 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.
        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, as in this case, the trial court makes findings of fact, we determine whether the evidence, when viewed in the light most favorable to the court's ruling, supports those findings. Kelly, 204 S.W.3d at 818-19. We then review the court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 819.         Because the officer stopped appellant without a warrant, the State bore the burden of showing the stop was reasonable within the totality of the circumstances. See Amador, 221 S.W.3d at 672-73. An officer conducts a lawful temporary detention when he has reasonable suspicion to believe an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him reasonably to conclude a particular person actually is, has been, or soon will be engaged in criminal activity. Id. “This standard is an objective one: there need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant.” Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). The State is not required to prove the individual actually committed a traffic violation, only that the officer reasonably believed a violation was in progress. Tex. Dep't of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex. App.--Dallas 2001, no pet.); see also Vasquez v. State, 324 S.W.3d 912, 919 (Tex. App.--Houston [14th Dist.] 2010, pet. ref'd); Green v. State, 93 S.W.3d 541, 545 (Tex. App.--Texarkana 2002, pet. ref'd).
        In the present case, the State argues that Kilgore had reasonable suspicion to believe appellant
was violating section 544.011 of the Texas Transportation Code because appellant was driving in the left lane while not passing. Section 544.011 reads as follows:
 
If, on a highway having more than one lane with vehicles traveling in the same direction, the Texas Department of Transportation or a local authority places a sign that directs slower traffic to travel in a lane other than the farthest left lane, the sign must read “left lane for passing only.”
 
Tex. Transp. Code Ann. § 544.011 (West Supp. 2011) (emphasis added).
        Violation of section 544.011 is a misdemeanor offense punishable by a fine of not less than $1 or more than $200. Id. §§ 542.301, 542.401 (West 1999); Mouton v. State, 101 S.W.3d 686, 689- 90 (Tex. App.--Texarkana 2003, no pet.). A violation of section 544.011 provides objectively reasonable grounds for a traffic stop. See Mouton, 101 S.W.3d at 690; Green, 93 S.W.3d at 544-45.         The Texas Transportation Code also provides:
 
(a) The operator of a vehicle or streetcar shall comply with an applicable official traffic-control device placed as provided by this subtitle unless that person is:
(1) otherwise directed by a traffic or police officer; or
 
 
 
(2) operating an authorized emergency vehicle and is subject to exceptions under this subtitle.
 
 
 
(b) A provision of this subtitle requiring an official traffic-control device may not be enforced against an alleged violator if at the time and place of the alleged violation the device is not in proper position and sufficiently legible to an ordinarily observant person. A provision of this subtitle that does not require an official traffic-control device is effective regardless of whether a device is in place.
 
Tex. Transp. Code Ann. § 544.004 (West 1999) (emphasis added). A lawfully placed sign is an “[o]fficial traffic-control device.” Id. § 541.304(1); Mouton, 101 S.W.3d at 689.
        Appellant contends that Kilgore did not have reasonable suspicion because the left-lane-for- passing-only sign “was not at the place of the alleged violation,” and Kilgore gave no other reason for stopping appellant's vehicle. While lack of a sign at the time and place of the alleged violation may be a defense to prosecution for violation of an official traffic-control device, the placement of the sign does not establish the test for reasonable suspicion. That test is an objective inquiry based on the officer's testimony of specific, articulated facts that would lead him reasonably to conclude appellant was committing a traffic violation. See Garcia, 43 S.W.3d at 530; see also Mouton, 101 S.W.3d at 690 (concluding reasonable basis for stop at mile marker 823 or 824, and evidence showed left-lane-for-passing-only signs at mile markers 812, 820, and 827); Green, 93 S.W.3d at 544-45 (stop at mile marker 164 and sign at marker 153); Baker v. State, 50 S.W.3d 143, 145 (Tex. App.--Eastland 2001, pet. ref'd) (sign approximately six miles before location of stop).
        Kilgore testified that he observed appellant driving eastbound on Highway 175 for approximately one mile before he stopped him. Appellant was driving in the left lane while not passing other vehicles. Kilgore identified a picture of the left-lane-for-passing-only sign posted on Highway 175 in Kaufman County approximately fifteen to twenty miles from the direction appellant was traveling, and he testified a like sign is posted on the same highway at the county line in the direction appellant was heading. Kilgore did not know where appellant entered the highway. Kilgore testified he believed, after observing appellant driving for approximately one mile, that appellant was committing a traffic offense in violation of section 544.011. Viewing these facts in the light most favorable to the trial court's ruling, as we must do, the evidence supports the trial court's finding that Kilgore articulated specific facts that would lead him reasonably to conclude appellant was violating section 544.011. See Vasquez, 324 S.W.3d at 919; Green, 93 S.W.3d at 545; Fisher, 56 S.W.3d at 163.
        On this record, we conclude the trial court did not err by denying appellant's motion to suppress. We overrule appellant's sole issue.
        We affirm the trial court's judgment.
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
100260F.U05
 
Footnote 1 According to the court's findings of fact, “No evidence was submitted to the court regarding the circumstances of the search which produced the marijuana.”