The State of Texas v. Maria Wise--Appeal from County Court at Law No 6 of Bexar County

MEMORANDUM OPINION

No. 04-04-00695-CR

The STATE of Texas,

Appellant

v.

Maria WISE,

Appellee

From the County Court at Law No. 6, Bexar County, Texas

Trial Court No. 855128

Honorable Philip A. Meyer, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: October 26, 2005

REVERSED

Appellant Maria Wise was stopped after San Antonio Police Department Officer Fidel Acosta observed her driving on the improved shoulder, failing to maintain a single lane of traffic, and following too closely to another vehicle. Wise was eventually charged with the offense of driving while intoxicated. Wise filed a motion to suppress which was granted by the trial court. The State raised one point of error claiming the trial court abused its discretion by granting Wise s motion to suppress despite Officer Acosta s reasonable suspicion for the initial stop. We reverse the trial court s order granting Wise s motion to suppress and remand the case for further proceedings consistent with this opinion.

Factual Background

Officer Acosta, a police officer with the San Antonio Police Department for sixteen years, was the only witness called to testify at the suppression hearing. On June 27, 2003, at approximately 1:40 a.m., Officer Acosta observed Wise driving a red Mustang entering Highway 90, in San Antonio, Texas. Wise s vehicle was between two other vehicles also entering Highway 90, all of which were traveling at approximately 50 to 55 miles per hour. Shortly thereafter, while traveling in the far right lane of the highway, Wise s vehicle veered onto the shoulder of the road with both right tires crossing over the white line. Wise corrected her vehicle back into her lane of travel and then accelerated, coming within eight to ten feet of the front vehicle. During his testimony, Acosta opined that Wise could not have safely stopped her vehicle without colliding with the vehicle in front of her had she been required to do so.

Upon examination, Acosta estimated that he was approximately 20 feet from Wise, traveling in the left lane, when the traffic offenses occurred. Acosta initiated a traffic stop after witnessing Wise driving on an improved shoulder, failing to maintain a single lane, and following too closely in violation of the Tex. Transp. Code Ann. 545.058, 545.060 and 545.062(a) (Vernon 1999), respectively.

As Acosta approached Wise s vehicle, he noticed her bloodshot eyes and the smell of alcohol on her breath. After conducting several field sobriety tests and concluding that Wise s alcohol consumption resulted in the loss of the normal use of her mental and physical faculties, Acosta arrested Wise for driving while intoxicated.

Wise filed a motion to suppress thereby requiring the State to establish a reasonable basis to stop Wise under any of the alleged offenses. At the completion of the motion to suppress hearing, the trial court granted the motion based on lack of reasonable suspicion stating:

I m granting the motion for reasonable suspicion only. There s plenty of probable cause...Although there were the alleged violations, my understanding has been if those things can be done safely without damage and there was no testimony of any unsafeness, if that is a word, I m granting the motion based on lack of reasonable suspicion.

A review of the record supports that the trial court believed the actions about which the officer testified occurred and that Acosta was therefore credible with regard to the facts about which he testified. However, the trial court did not believe that these actions, absent unsafeness, constituted a violation.

Standard of Review

Although no written findings of facts and conclusions of law were filed by the trial court, the findings made at the end of the hearing constitute findings of fact and conclusions of law. See Ross v. State, 32 S.W.3d 853, 858 (Tex. Crim. App. 2000) (If the non-prevailing party wishes to avoid the effects of a lack of findings of fact and conclusions of law, it should get the rationale behind the trial court s ruling on the record through either verbal explanation at the hearing or express findings of fact and conclusions of law ). Thus, when the trial court explained that there were the alleged violations, he essentially made a finding of fact that the actions about which Acosta testified were true. State v. Groves, 837 S.W.2d 103, 106 n.5 (Tex. Crim App. 1992) (stating [w]hile the record does not reveal any specific written findings of fact and conclusions of law,...the trial court intended for its findings/conclusions to be expressed via its oral pronouncements ). The court s determination that the statute required unsafeness, on the other hand, was a conclusion of law. Id.

Whether Sections 545.058, 545.060, and 545.062 require an independent showing of unsafeness in order to establish a reasonable suspicion of their infraction is a pure question of law and is reviewed de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Cf. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (holding [w]hen a trial court fails to file findings of fact, the appellate court views the evidence in the light most favorable to the trial court s ruling and assumes that the trial court made implicit findings of fact that support its ruling, as long as those findings are supported by the record ); Cullen v. State, 167 S.W.3d 428 (Tex. App. San Antonio 2005, pet. filed) (holding lack of findings of fact or conclusions of law mandate appellate court to provide total deference in regard to questions of fact and evaluation of the demeanor of the witnesses). We, therefore, conduct a de novo review of whether the trial court properly applied Sections 545.058, 545.060, and 545.062 of the Texas Transportation Code.

Reasonable Grounds for Stop

It is well settled that a traffic violation committed in an officer s presence authorizes an initial stop. Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982). Reasonable suspicion exists if an officer can articulate specific facts, in combination with rational inferences from those facts, that lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). This is an objective standard, irrespective of any subjective intent of the officer making the stop, and looks solely to whether an objective basis for the stop exists. Id. An appellate court reviews a reasonable suspicion determination by reviewing the totality of the circumstances. Id. Moreover, [i]f an officer has a reasonable basis for suspecting that a person has committed a traffic offense, the officer may legally initiate a traffic stop. Powell v. State, 5 S.W.3d 369, 376 (Tex. App. Texarkana 1999, pet. ref d) (citing Drago v. State, 553 S.W.2d 375, 377-78 (Tex. Crim. App. 1977) (indicating that proof of an actual commission of a traffic offense is not required only a reasonably apparent violation)).

Driving on Improved Shoulder - 545.058 (a)

Officer Acosta s testimony that Wise drove on the improved shoulder of the highway was uncontroverted. When Wise left her marked lane and both her right tires crossed over the white solid line, Officer Acosta testified that he believed she was in violation of Section 545.058 (a). // Tex. Transp. Code Ann. 545.058 (a) (Vernon 1999). The trial court correctly held that the operator of a vehicle may drive on an improved shoulder, to the right of a main traveled portion of a roadway, if it is done safely. But, the trial court failed to recognize the statute s other requirements: necessity, and for one of the prescribed statutory purposes. Tex. Transp. Code Ann. 545.058 (a) (Vernon 1999) (requiring three independent elements: (1) necessity, (2) safely done, and (3) for at least one of the enumerated purposes). Importantly, however, to validate the initial stop, the State need only show that Officer Acosta had a reasonable basis that the alleged traffic violation occurred not that it actually occurred. Hesskew v. Texas Dept. of Public Safety, 144 S.W.3d 189, 191 (Tex. App. Tyler 2004, no pet.).

The trial court appeared to rely solely on the lack of testimony that Wise s sojourn onto the improved shoulder was unsafe. Yet, by the same token, there was no evidence presented that it was necessary for Wise to drive on the improved shoulder or that her actions fell within one of the permissible purposes. See Tyler v. State, 161 S.W.3d 745, 750 (Tex. App. Fort Worth 2005, no pet.) (upholding violation of section 545.058 (a) when no evidence in record indicated it was necessary for appellant to drive on the shoulder under any one of the statutory exceptions).

In Tyler, the officer charged both failure to maintain a single lane and driving on the improved shoulder and the court held the two violations were in fact different offenses. Id. More importantly, the Tyler court held that absent evidence proving that driving on the improved shoulder was necessary, there was sufficient evidence to establish probable cause to make the stop. Id. Similarly, even assuming the trial court is correct and Officer Acosta did not see Wise drive unsafely onto the shoulder of the road, the evidence does not substantiate necessity or that one of the statutory exemptions applied. Therefore, it was reasonable for Officer Acosta to believe that a violation of Section 545.058 (a) was transpiring.

The trial court s decision to grant the motion to suppress based on lack of reasonable suspicion for the initial stop misapplies the law and should be REVERSED with regard to Section 545.058 (a) of the Texas Transportation Code, Driving on Improved Shoulder. Because we hold the trial court should be reversed on this basis, we need not address the other alleged violations. This matter is therefore REMANDED to the trial court for further proceedings consistent with this opinion.

Rebecca Simmons, Justice

DO NOT PUBLISH