LEMING, JAMES EDWARD Appeal from 124th District Court of Gregg County (concurring by judge richardson)
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0072-15 JAMES EDWARD LEMING, Appellant v. THE STATE OF TEXAS ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS GREGG COUNTY R ICHARDSON, J., filed a concurring opinion in which M EYERS, J., joined. CONCURRING OPINION I agree with in the majority’s conclusion that Manfred Gilow, a Longview police officer, had reasonable suspicion to detain Appellant in order to investigate the offense of driving while intoxicated. I also agree with the court’s decision to reverse the court of appeals’s judgment and reinstate the trial court’s judgment. I agree that Officer Gilow had an “objectively justifiable basis” for the detention because he had “specific, articulable facts that, combined with rational inferences from those James Edward Leming Concurring — 2 facts, would lead [a police officer] reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity.”1 Such specific, articulable facts are that Officer Gilow was notified of a citizen’s report of a white jeep vehicle on the road that was “swerving from side to side;” when following the jeep, Officer Gilow observed that Appellant was traveling thirteen miles per hour below the posted speed limit; and that Appellant was swerving within his lane, almost hitting the curb a few times. As pointed out by the majority, these facts provide an objectively justifiable basis for any police officer to reasonably conclude that Appellant could be driving while intoxicated. Moreover, I do not disagree with the majority’s analysis of Transportation Code § 540.060. The statute provides that a driver “shall drive as nearly as practical entirely within a single lane,” and a driver “may not move from the lane unless that movement can be made safely.” This means that a person could be in violation of that statute if he or she fails to do either one of the required actions. This interpretation does not turn the “and” into an “or.” The “and” means that both are statutory requirements. It is the potential violation of the statute that incorporates the “or.” 2 1 2 Derichsweiler v. State, 348 S.W.3d 906, 914-15 (Tex. Crim. App. 2011). This is somewhat analogous to how jury charges are drafted. For example, in the context of a self-defense jury charge instruction, a person’s belief that force used in self-defense was immediately necessary is presumed to be reasonable if three requirements are met (the word “and” is used). T EX. P ENAL C ODE § 9.31(a). That presumption applies unless the State proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist. T EX. P ENAL C ODE § 2.05(b)(2)(A). This means that if the State disproves any one of the three required actions – one, two, or three – then the presumption will not apply. Here, section 540.060 places two requirements on drivers. A violation can occur if the driver fails to do one or the other. James Edward Leming Concurring — 3 Finally, even though, in its petition for discretionary review, the State seemingly abandoned its argument regarding the community caretaking exception, I believe it, too, provided justification for the officer’s stop. An officer’s community caretaking function may be invoked where an officer stops to assist an individual “whom a reasonable person—given the totality of the circumstances—would believe is in need of help.”3 Given the totality of the circumstances here, consistent with Officer Gilow’s testimony that he believed Appellant might have been “somewhat impaired,” a reasonable person would believe that Appellant may have been in need of help because of the way he was driving. With these additional comments, I join the majority opinion. FILED: April 13, 2016 PUBLISH 3 Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999). See also, Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002) and Gonzales v. State, 369 S.W.3d 851 (Tex. Crim. App. 2012).
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