Bernard Daniel v. the State of Texas ( 2021 )


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  •        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-20-00519-CR
    Bernard Daniel, Appellant
    v.
    The State of Texas, Appellee
    FROM THE 27TH DISTRICT COURT OF BELL COUNTY
    NO. 80234, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
    OPINION
    Following the denial of his motion to suppress evidence, appellant Bernard Daniel
    pleaded guilty to the felony offense of driving while intoxicated and was placed on community
    supervision for four years. In a single issue on appeal, Daniel contends that the district court
    should have granted the motion to suppress.           We agree and will reverse the judgment
    of conviction.
    BACKGROUND
    At the hearing on the motion to suppress, former Killeen Police Department
    Officer John Todd testified that on the night of April 15, 2017, he stopped Daniel’s vehicle for
    failing to maintain a single lane of traffic. Todd first observed Daniel’s vehicle stopped at the
    intersection of Central Texas Expressway and Stan Schlueter Loop in Killeen. There were two
    left-turn lanes at the intersection. Daniel’s vehicle, which was in the outer turn lane, turned left
    onto Stan Schlueter Loop. As the vehicle made the turn, “approximately half the vehicle”
    crossed the dotted white line separating the outer turn lane from the inner turn lane, before
    returning to the outer lane. After completing the turn, Daniel’s vehicle continued driving on Stan
    Schlueter Loop in the outer westbound lane of the four-lane divided roadway, followed by
    Todd’s patrol vehicle. Todd testified that he observed Daniel’s vehicle cross the dotted white
    line dividing the outer and inner westbound lanes on two other occasions before initiating the
    traffic stop. Todd acknowledged that the only reason he stopped Daniel’s vehicle was for failure
    to maintain a single lane of traffic. Todd also acknowledged that at the times he observed
    Daniel’s vehicle cross the line, there were no other cars near his vehicle. 1
    A video recording of the stop, taken from Todd’s patrol-car dash camera, was also
    admitted into evidence. In the recording, Daniel’s vehicle can be seen clearly crossing the line
    dividing the outer and inner turn lanes as Daniel turned left, but, as Todd acknowledged in his
    testimony and as the State concedes in its brief, it is difficult to see on the video the other two
    times that Daniel’s vehicle crossed the line.
    During the traffic stop, Todd spoke with Daniel, observed signs that he was
    intoxicated, and subsequently arrested him for driving while intoxicated. Prior to trial, Daniel
    filed a motion to suppress evidence of his intoxication, asserting that Todd lacked reasonable
    suspicion to initiate the traffic stop. At the hearing on the motion, Daniel argued that to violate
    the failure-to-maintain-a-single-lane statute, see Texas Transportation Code § 545.060(a), a
    motorist must have failed to maintain his lane under circumstances that were unsafe. Daniel
    contended that because there was no evidence that he had crossed the line in an unsafe manner,
    1   There was another vehicle stopped at the intersection at the same time as Daniel’s
    vehicle, in the inner turn lane. However, that vehicle turned left before Daniel’s vehicle did and
    was ahead of Daniel’s vehicle by the time Daniel crossed the dividing line.
    2
    there was no violation of Section 545.060(a). The State argued in response that the video
    showed “a very clear failure to maintain a single lane during a left turn. [Daniel’s] car went
    almost entirely into the inside lane as he made it into the roadway. That’s a clear violation of the
    law.” The district court took the matter under advisement and later denied the motion to
    suppress. On its docket sheet, the district court made findings of fact and conclusions of law,
    including the following:
    [Daniel] turned left and did not remain within his single marked lane; Officer
    Todd followed to make an investigatory stop; he indicated that he saw two more
    instances of not maintaining a single marked lane before the stop which were
    not unsafe[.]
    A warrantless stop was made upon probable cause which [led] to [Daniel]’s arrest
    and detention for DWI[.]
    Daniel subsequently pleaded guilty to driving while intoxicated, was sentenced to four years’
    imprisonment, but had his sentence suspended and was placed on community supervision for
    four years. This appeal followed.
    STANDARD OF REVIEW
    “We review a ruling on a motion to suppress using a bifurcated standard of
    review.” Sims v. State, 
    569 S.W.3d 634
    , 640 (Tex. Crim. App. 2019) (citing Guzman v. State,
    
    955 S.W.2d 85
    , 87-91 (Tex. Crim. App. 1997)). “A trial court’s findings of historical fact and
    determinations of mixed questions of law and fact that turn on credibility and demeanor are
    afforded almost total deference if they are reasonably supported by the record.” 
    Id.
     “That same
    deferential standard of review ‘applies to a trial court’s determination of historical facts [even]
    when that determination is based on a videotape recording admitted into evidence at a
    3
    suppression hearing.’” State v. Duran, 
    396 S.W.3d 563
    , 570 (Tex. Crim. App. 2013) (quoting
    Montanez v. State, 
    195 S.W.3d 101
    , 109 (Tex. Crim. App. 2006)). “We review a trial court’s
    determination of legal questions and its application of the law to facts that do not turn upon a
    determination of witness credibility and demeanor de novo.” 
    Id.
    DISCUSSION
    Reasonable suspicion
    In his sole issue on appeal, Daniel argues that the district court erred in denying
    his motion to suppress because Officer Todd lacked reasonable suspicion to initiate a traffic stop.
    “When a police officer stops a defendant without a warrant, the State has the burden of proving
    the reasonableness of the stop at a suppression hearing.” State v. Cortez, 
    543 S.W.3d 198
    , 204
    (Tex. Crim. App. 2018). “An officer may make a warrantless traffic stop if the ‘reasonable
    suspicion’ standard is satisfied.” Jaganathan v. State, 
    479 S.W.3d 244
    , 247 (Tex. Crim. App.
    2015) (citing Guerra v. State, 
    432 S.W.3d 905
    , 911 (Tex. Crim. App. 2014)). “Reasonable
    suspicion exists if the officer has ‘specific articulable facts that, when combined with rational
    inferences from those facts, would lead him to reasonably suspect that a particular person has
    engaged or is (or soon will be) engaging in criminal activity.’” 
    Id.
     (quoting Abney v. State,
    
    394 S.W.3d 542
    , 548 (Tex. Crim. App. 2013)). “The standard requires only ‘some minimal level
    of objective justification’ for the stop.” Hamal v. State, 
    390 S.W.3d 302
    , 306 (Tex. Crim. App.
    2012) (quoting Foster v. State, 
    326 S.W.3d 609
    , 614 (Tex. Crim. App. 2010)). “We review a
    reasonable suspicion determination by considering the totality of the circumstances.” Cortez,
    
    543 S.W.3d at 204
    . “Whether the facts known to the officer amount to reasonable suspicion is a
    mixed question of law and fact subject to de novo review.” Hamal, 390 S.W.3d at 306 (citing
    4
    State v. Mendoza, 
    365 S.W.3d 666
    , 669–70 (Tex. Crim. App. 2012)); State v. Colby,
    
    604 S.W.3d 232
    , 237 (Tex. App.—Austin 2020, no pet.); see also State v. McMahan,
    No. 03-19-00824-CR, 
    2020 WL 6533661
    , at *3 (Tex. App.—Austin Nov. 6, 2020, no pet.)
    (mem. op., not designated for publication).
    In this case, the only basis for the traffic stop was Section 545.060(a) of the Texas
    Transportation Code, 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 § 545.060(a). Daniel does not dispute that he failed to drive as nearly as practical entirely
    within a single lane but contends that because there was no evidence that his movement from that
    lane was unsafe, Todd had no reason to suspect a violation of Section 545.060(a). The State
    concedes in its brief that “the evidence does not suggest any unsafe circumstances” and that
    “Todd’s testimony tends to suggest there was nothing unsafe about Appellant’s driving.” The
    State contends, however, that Section 545.060(a) creates two separate offenses: (1) failure to
    drive as nearly as practical entirely within a single lane, and (2) moving from the lane in an
    unsafe manner. Thus, in the State’s view, evidence of Daniel’s failure to stay within his lane is
    sufficient, by itself, to support Todd’s reasonable belief that Daniel had violated
    Section 545.060.
    This Court rejected that argument in Hernandez v. State, 
    983 S.W.2d 867
     (Tex.
    App.—Austin 1998, pet. ref’d). In that case, the State contended that a driver’s “drift” across a
    lane marker into another lane of traffic traveling in the same direction, without any evidence that
    the drifting was unsafe, gave an officer reasonable suspicion to believe that the driver had
    violated Section 545.060(a). 
    Id.
     at 869–70. The Court concluded that it did not. Id. at 871.
    5
    This Court began its analysis by observing that “the history of the relevant statutory provision
    seems to indicate that, with respect to a vehicle’s straying over a lane marker, a traffic violation
    occurs only when the vehicle’s movement is in some way unsafe.” Id. This Court explained:
    In 1947 the legislature first enacted a traffic regulation regarding “driving on
    roadways laned for traffic,” which provided as follows:
    Whenever any roadway has been divided into two (2) or more clearly marked
    lanes for traffic the following rules in addition to all others consistent herewith
    shall apply:
    (a) The driver of a vehicle shall drive as nearly as practical entirely within a single
    lane and shall not be moved from such lane until the driver has first ascertained
    that such movement can be made with safety.
    This provision remained unchanged until the legislature enacted the
    Transportation Code in 1995. The replacement provision provides: “An 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.” The enactment of the
    Transportation Code made no substantive change in the law.
    Id. (internal citations omitted). This Court also placed significance on the legislature’s “use of
    the term ‘practical’ rather than ‘practicable’ in the first clause of the statute. Id. “The latter term
    has a somewhat more definite meaning: ‘capable of being accomplished; feasible; possible,’
    while the former term is more ambiguous: ‘manifested in practice; capable of being put to good
    use.’” Id. (quoting Bryan A. Garner, A Dictionary of Modern Legal Usage 678 (2d ed.1995)).
    Thus, “the very vagueness of the requirement that the operator of a vehicle drive within a single
    lane ‘as nearly as practical’ indicates that the legislature did not intend for the initial clause of the
    statute to create a discrete offense apart from some element of unsafety.” Id.
    6
    Based on the above considerations, this Court concluded,
    We believe the statutory language shows a legislative intent that a violation of
    section 545.060 occurs only when a vehicle fails to stay within its lane and such
    movement is not safe or is not made safely. Neither the current provision in the
    Transportation Code nor the original statute creates two separate offenses, but
    rather only one: moving out of a marked lane when it is not safe to do so.
    Id. (emphasis in original). The construction of Section 545.060(a) that was first announced in
    Hernandez remains the law in this Court and at least two other intermediate courts of appeals.
    See, e.g., State v. Hardin, No. 13-18-00244-CR, 
    2019 WL 3484428
    , at *3 (Tex. App.—Corpus
    Christi Aug. 1, 2019, pet. granted) (mem. op, not designated for publication); State v. Bernard,
    
    503 S.W.3d 685
    , 691 (Tex. App.—Houston [14th Dist.] 2016), judgment vacated on other
    grounds, 
    512 S.W.3d 351
     (Tex. Crim. App. 2017); Marrero v. State, No. 03-14-00033-CR, 
    2016 WL 240908
    , at *3 (Tex. App.—Austin Jan. 14, 2016, no pet.) (mem. op., not designated
    for publication).
    However, in Leming v. State, 
    493 S.W.3d 552
     (Tex. Crim. App. 2016), a four-
    judge plurality of the Court of Criminal Appeals rejected this Court’s reasoning in Hernandez.
    The plurality instead construed Section 545.060(a) as creating two separate offenses:
    Thus, it is an offense to change marked lanes when it is unsafe to do so; but it is
    also an independent offense to fail to remain entirely within a marked lane of
    traffic so long as it remains practical to do so, regardless of whether the deviation
    from the marked lane is, under the particular circumstances, unsafe.
    
    Id.
     at 559–60.
    7
    Because Leming was a plurality opinion as to the construction of Section
    545.060(a), 2 it is not binding precedent on this Court. See State v. Martinez, 
    570 S.W.3d 278
    ,
    284 (Tex. Crim. App. 2019); Unkart v. State, 
    400 S.W.3d 94
    , 99–100 (Tex. Crim. App. 2013).
    Nevertheless, the State contends that we should “reconsider Hernandez” and essentially adopt
    the reasoning of the Leming plurality. 3
    We decline to do so because Hernandez was decided correctly.                 Section
    545.060(a) creates a single offense, for the reasons discussed in Hernandez and because the plain
    language of the statute compels such a conclusion. Again, Section 545.060(a) requires 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
    2  The court addressed two issues in Leming v. State, 
    493 S.W.3d 552
     (Tex. Crim. App.
    2016). The first issue, addressed in Part II of the opinion, was whether the failure to maintain a
    single lane of traffic needed to be unsafe to constitute an offense under Section 545.060(a). 
    Id.
     at
    556–61. Part II of the opinion rejected this Court’s analysis in Hernandez. 
    Id.
     Judge Yeary
    delivered an opinion with respect to Part II in which Presiding Judge Keller, Judge Meyers, and
    Judge Richardson joined. 
    Id. at 553
    . Thus, Part II of the opinion was not supported by a
    majority of the judges on the court.
    The second issue, addressed in Part III of the opinion, was whether the traffic stop could
    be upheld on the alternative legal theory that the officer had reasonable suspicion to believe that
    the defendant was driving while intoxicated. 
    Id.
     at 561–65. A majority of the judges on the
    court concluded that the stop could be upheld on that theory. 
    Id.
     Judge Yeary delivered the
    opinion of the Court with respect to Part III in which Presiding Judge Keller, Judge Meyers,
    Judge Alcala, and Judge Richardson joined. 
    Id. at 553
    .
    Judge Richardson filed a concurring opinion, joined by Judge Meyers. 
    Id.
     at 565–66.
    Judge Keasler filed a dissenting opinion, joined by Judges Johnson and Hervey. 
    Id.
     at 566–73.
    Judge Newell filed a separate dissenting opinion. 
    Id.
     at 573–74.
    3   Contrary to what is implied in footnote 4 of the dissent, this Court has never cited the
    Leming plurality as authority regarding the interpretation of Section 545.060(a). Instead, we
    have cited Leming for general concepts such as, “for a peace officer to stop a motorist to
    investigate a traffic infraction, as is the case with any investigative stop, ‘proof of the actual
    commission of the offense is not a requisite.’” Leming, 
    493 S.W.3d at 561
     (quoting Drago
    v. State, 
    553 S.W.2d 375
    , 377 (Tex. Crim. App. 1977)).
    8
    that movement can be made safely.” Tex. Transp. Code § 545.060(a) (emphasis added). The
    two clauses are joined by the conjunctive “and,” which means that to violate Section 545.060(a),
    a motorist must both fail to drive as nearly as practical entirely within a single lane and fail to
    make that movement safely. If the legislature had intended a different result, it could have used
    the disjunctive “or” to separate the clauses, as it did in Section 545.060(b). See In re A.L.M.,
    
    300 S.W.3d 914
    , 919 (Tex. App.—Texarkana 2009, no pet.) (“‘Ordinarily the words “and” and
    “or,” are in no sense interchangeable terms, but, on the contrary, are used in the structure of
    language for purposes entirely variant, the former being strictly of a conjunctive, the latter, of a
    disjunctive, nature.’” (quoting Bd. of Ins. Comm’rs v. Guardian Life Ins. Co. of Tex.,
    
    180 S.W.2d 906
    , 908 (Tex. 1944)); see also Antonin Scalia & Bryan A. Garner, Reading Law:
    The Interpretation of Legal Texts § 12, 116 (2002) (“Under the conjunctive/disjunctive canon,
    and combines items while or creates alternatives. . . . With a conjunctive list, all . . . things are
    required—while with the disjunctive list, at least one of the [things] is required, but any one . . .
    satisfies the requirement.”). Additionally, reading the statutory requirements (a)(1) and (a)(2)
    together to form a single, complete offense, rather than two independent offenses, gives effect to
    the entire statute. We also observe that this construction of the statute is consistent with similar
    provisions in the Transportation Code that allow movement from one’s lane if such movement
    can be done safely. See, e.g., Tex. Transp. Code §§ 545.058(a) (“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.”), 545.103 (“An operator may not . . . move right or left on a
    roadway unless movement can be made safely.”). Finally, as the Court of Criminal Appeals has
    observed, “[d]riving is an exercise in controlled weaving. It is difficult enough to keep a straight
    path on the many dips, rises, and other undulations built into our roadways.” State v. Cortez,
    9
    
    543 S.W.3d 198
    , 206 (Tex. Crim. App. 2018). To allow an officer to stop a motorist for
    momentarily drifting outside their lane of traffic, when there is no evidence that it was unsafe to
    do so, would seem to be an absurd result that the legislature could not have possibly intended.
    Hernandez’s construction of Section 545.060(a) avoids that result.
    Additionally, even if we were inclined to reconsider Hernandez, “absent a
    decision from the Court of Criminal Appeals or this court sitting en banc that is on point and
    contrary to the prior panel decision or an intervening and material change in the statutory law,
    we are bound by our prior panel decision.”       Medina v. State, 
    411 S.W.3d 15
    , 20 n.5 (Tex.
    App.—Houston [14th Dist.] 2013, no pet.); see also Connor v. Hooks, No. 03-19-00198-CV,
    
    2021 WL 833971
    , at *8 & n.11 (Tex. App.—Austin Mar. 5, 2021, pet. filed) (mem. op.)
    (observing that prior panel opinions were “binding precedent on this Court” and finding “their
    reasoning more than adequate”); Ayeni v. State, 
    440 S.W.3d 707
    , 717 n.8 (Pemberton, J.,
    concurring) (“We may not overrule a prior panel opinion of this court absent an intervening
    change in the law by the Legislature or a higher court or by decision of this court sitting en
    banc.”). This is especially true in cases involving statutory construction, where “‘the doctrine of
    stare decisis has its greatest force’ because the Legislature can rectify a court’s mistake, and if
    the Legislature does not do so, there is little reason for the court to reconsider whether its
    decision was correct.” Phelps v. State, 
    532 S.W.3d 437
    , 443 n.6 (quoting Sw. Bell Tel. Co., L.P.
    v. Mitchell, 
    276 S.W.3d 443
    , 447–48 (Tex. 2008)).
    The State, cognizant that a panel of this Court is bound by Hernandez, thus asks
    this Court to consider this case en banc. However, “[e]n banc consideration of a case is not
    favored and should not be ordered unless necessary to secure or maintain uniformity of the
    court’s decisions or unless extraordinary circumstances require en banc consideration.” Tex. R.
    10
    App. P. 41.2(c). Extraordinary circumstances are not present here, and because there are no
    cases in which this Court has not followed Hernandez, en banc consideration is unnecessary to
    secure or maintain uniformity of the court’s decisions. Accordingly, we decline the State’s
    invitation to consider this case en banc.       We continue to follow this Court’s holding in
    Hernandez that a violation of Section 545.060(a) requires both a failure to maintain a single lane
    of traffic and a failure to do so safely.
    Reasonable mistake of law
    The State argues in the alternative that even if we continue to follow this Court’s
    holding in Hernandez, the district court’s suppression ruling should be upheld on the theory that
    Officer Todd made a “reasonable mistake of law” as to the requirements of Section 545.060(a).
    See Heien v. North Carolina, 
    574 U.S. 54
    , 57 (2014) (holding that if officer initiates traffic stop
    based on “reasonable mistake of law” as to whether defendant’s conduct violated traffic statute,
    stop is “lawful under the Fourth Amendment.”). In the State’s view, “In light of the conflicting
    opinions from the appellate courts and the statute’s ambiguity, an officer could reasonably
    conclude that Appellant’s conduct violated the statue” and that “after Leming, Hernandez is no
    longer good law.”
    We disagree.       The “reasonable mistake of law” doctrine applies only to
    “reasonable mistakes,” and those mistakes must be “objectively reasonable.” Id. at 66. Thus,
    “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is
    duty-bound to enforce.” Id. at 67. For the “reasonable mistake of law” doctrine to apply, “the
    statute must pose a ‘really difficult’ or ‘very hard question of statutory interpretation,’” and such
    cases are “exceedingly rare.” Heien v. North Carolina, 
    574 U.S. 54
    , 70 (2014) (Kagan, J.,
    11
    concurring). For example, if an ambiguous statute has “never been previously construed” by the
    appellate courts, then an officer’s mistaken interpretation of the statute may be objectively
    reasonable. See Heien, 574 U.S. at 67–68; see also Heien, 574 U.S. at 70 (Kagan, J., concurring)
    (“If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires
    hard interpretive work, then the officer has made a reasonable mistake. But if not, not.”).
    This is not one of those “exceedingly rare” cases. To the extent that Section
    545.060(a) could be considered ambiguous, any such ambiguity was resolved by this Court in
    1998 when this Court in Hernandez construed the statute. As the Leming plurality noted, by
    2016, “[a]ll of the courts of appeals that have addressed the question since—about half of
    them—have adopted the Third Court’s conclusion, without seriously questioning that court’s
    reasoning.” 
    493 S.W.3d at 557
    . It is true that after 2016, many of those other courts have
    changed course and followed the reasoning of the Leming plurality.           See Dugar v. State,
    
    629 S.W.3d 494
    , 499–500 & n.28 (Tex. App.—Beaumont 2021, pet ref’d) (collecting cases and
    observing that “the intermediate courts are now split about what proof is required to establish a
    driver violated the maintain-a-single-lane statute, section 545.060”). But those other courts do
    not govern this jurisdiction. Hernandez remains the law here. We conclude that it would not be
    objectively reasonable for an officer in this Court’s jurisdiction to be mistaken about the
    requirements of Section 545.060(a), as announced by this Court over two decades ago in
    Hernandez, when this Court has never stopped following Hernandez or cast any doubt on its
    continuing validity, and there is no binding precedent from the Court of Criminal Appeals
    overruling Hernandez. To conclude otherwise would effectively eviscerate this Court’s holding
    in Hernandez and allow officers to stop motorists for failing to maintain a single lane under any
    circumstances, even when there is no evidence that it was unsafe to do so. This Court has long
    12
    held that a violation of Section 545.060(a) requires movement from one’s lane in a manner that
    is unsafe, and it is not objectively reasonable for an officer in this Court’s jurisdiction to
    believe otherwise. 4
    We sustain Daniel’s sole issue on appeal.
    4   Although the “reasonable mistake of law” doctrine does not “examine the subjective
    understanding of the particular officer involved,” Heien v. North Carolina, 
    574 U.S. 54
    , 66
    (2014), we note that Officer Todd, in his testimony on cross-examination, appeared to
    understand that Section 545.060(a) included a requirement that the failure to maintain a single
    lane of traffic be unsafe:
    Q.     Now, Texas Transportation Code, that’s the code section you’re citing for staying
    within one lane of travel. You’re familiar with that section; is that correct?
    A.      Yes, sir.
    Q.      And in that section, what it states is that, “A driver must drive as nearly as
    practical, entirely within one lane”; isn’t that correct?
    A.      Yes, sir.
    Q.      And it also states, “and not move from that lane unless it can be done safely.”
    That’s what the statute requires; isn’t that correct?
    A.      Yes, sir.
    Q.      So the statute doesn’t say that it’s against the law to leave your lane simply and
    absolutely, does it? In other words, you can—so long as you stay within the lane
    as nearly as practical as possible; isn’t that correct?
    A.      And safely, yes, sir.
    Q.      And requirement, “and that you cannot move safely”; isn’t that correct?
    A.      Yes, sir, it is.
    13
    CONCLUSION
    We reverse the judgment of the district court and remand for further proceedings
    consistent with this opinion.
    __________________________________________
    Gisela D. Triana, Justice
    Before Justices Goodwin, Triana, and Kelly
    Dissenting opinion by Justice Goodwin
    Reversed and Remanded
    Filed: December 23, 2021
    Publish
    14