State v. Jorge A. Espinoza ( 2018 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
THE STATE OF TEXAS, §
No. 08-16-00087-CR
Appellant, §
Appeal from the
v. §
County Criminal Court at Law #2
JORGE ARTURO ESPINOZA, §
of El Paso County, Texas
Appellee. §
(TC# 20150C10006)
§
DISSENTING OPINION
Because I disagree with the majority’s conclusion that the State met its burden of proof to
present facts supporting a reasonable suspicion that Appellee Jorge Espinoza may be driving while
intoxicated at the time of the traffic stop that is at issue in this case, I write separately. Although
the majority does not reach the other two issues, I am also not convinced the State established
reasonable suspicion to stop Espinoza for failure to maintain a single lane or to signal a lane
change. Contrary to the majority, I would conclude that the trial court did not err in granting
Espinoza’s motion to suppress and would affirm the trial court’s order. Respectfully, I dissent.
DWI
The majority concludes that the State presented facts supporting a reasonable suspicion
that Espinoza may be driving while intoxicated at the time the stop was made. On review of the
record, I disagree that the State met its burden to show that the officer had sufficient information
required for a warrantless traffic stop. “Reasonable suspicion requires more than a hunch; it exists
only when an officer has specific, articulable facts that, taken together with reasonable inferences
from those facts, would lead the officer to reasonably conclude that the person detained is, has
been, or soon will be, engaging in criminal activity.” Delafuente v. State, 414 S.W.3d 173, 177
(Tex.Crim.App. 2013). A reasonable suspicion determination is objectively made by considering
the totality of the circumstances. Id.
To summarize, our record includes Officer Wilkinson’s affidavit prepared on the morning
of the arrest, his testimony at the suppression hearing, and the video recording of the traffic stop
as seen from Officer Wilkinson’s patrol car. In his affidavit, Wilkinson described that he had
observed Espinoza’s vehicle straddle the right lane marker, and he began to follow. He then
described that he observed the vehicle continue to straddle the lane marker between the middle
and right lane of travel. Articulating no further details, he described that he then initiated a traffic
stop and met with the driver.
At the hearing, Wilkinson testified Espinoza’s Jeep caught his attention when he observed
him make a U-turn and then move over to the right lane of travel and then back to the middle lane
without signaling. Officer Wilkinson also testified that he stopped Espinoza in an area with
establishments that serve alcohol until 2 a.m. Giving further details, Wilkinson testified he saw
Espinoza’s vehicle, “kind of drift over and drive . . . on the line and then kind of drift back and –
he did that a few times.” On deciding to pull him over, he stated he had observed Espinoza, “enter
the right lane again and then back to the middle lane without signaling, and then I initiated a traffic
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stop.”
On cross-examination, defense counsel played the dashcam video from Wilkinson’s patrol
vehicle and intermittently paused to ask questions. Defense counsel asked Wilkinson to point out
each time he saw a traffic violation.1 As Wilkinson responded, he described seeing Espinoza,
“straddling the lanes right there,” which he explained meant he was “driving on the lane markers.”
Wilkinson added, however, that when he observed the “straddling,” it was not unsafe and, as
shown on the video, it did not meet the definition on which he had been trained. Straddling, he
explained, was defined by the National Highway Traffic Safety Administration (NHTSA) as a
vehicle moving straight ahead with the center or lane marker between the left-hand and right-hand
wheels. Although Wilkinson described Espinoza’s tire as being wider than the lane marker, and
thus, it was “technically” in the other lane, he agreed that what was seen on the video differed from
the NHTSA definition.
Wilkinson also conceded that Espinoza had not actually changed lanes at the point in the
video which he had described as lane straddling. When asked to continue and identify other
violations, Wilkinson pointed out in the video, “[r]ight there, it looked like real brief – right there,
he touched [the lane divider].” On further questioning, however, Wilkinson agreed that even
though Espinoza, “began on the lane, the marker,” he drove “practically, yes, he is in his lane of
travel.” After further viewing, Wilkinson then said, “[h]e’s actually over the line now,” but also
added that no one else was on the road and Espinoza was not in danger of hitting anyone.
Wilkinson asserted he had identified two violations at the beginning concerning failure to signal
1
Both the trial court’s Findings of Fact and Conclusions of Law and the State’s Brief refer to timestamps from the
dashcam video. Although we, too, can view video timestamps, our reporter’s record does not link witness
testimony to any timestamps.
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lane changes. First, “he entered the other lane of travel a little bit and then came back;” and,
second, “[h]e moved over – whether he drifted or whatever – he moved over to the right lane a
little bit, entered the right lane, with the right side of his car, and then came back over without
signaling.” Clarifying, Wilkinson testified that he agreed that no signaling is needed if he’s not
changing lanes.
Officer Wilkinson testified that he had been a peace officer with the El Paso Police
Department for nine and a half years and was assigned to the DWI Task Force. Without providing
details, he also testified that he was SFST certified, had taken numerous courses on identifying
intoxicated drivers, and had attended numerous training sessions related to impaired drivers.
When first asked whether he had also suspected intoxication before initiating the stop, Wilkinson
replied, “I don’t recall having a hunch. I just remember pulling him over for the violation.”
Later, on redirect, Wilkinson testified differently stating he had reasonable suspicion to believe
that Espinoza was intoxicated at the moment when he turned on his lights to initiate his stop.
When read in its entirety, Wilkinson’s testimony was equivocal on whether he initiated a
traffic stop based on a suspicion of DWI based on facts and reasonable inferences. When asked
whether moving from one lane and back without signaling indicated a sign of intoxication,
Wilkinson responded “no.” Then, when asked whether “drifting from lane to lane,” in and of
itself, would indicate a sign of intoxication, Wilkinson responded “[i]t’s a cue, based on my
experience, that—over the years, its’s not normal behavior for someone to kind of straddle the lane
and come back. Especially the time of day, the area, it’s a cue, yes.” The area, he further
explained, was well-known “for people to go and get drinks.” With this answer, Officer
Wilkinson likely provided sufficient information to support having suspicion of intoxication. On
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cross-examination, however, he went on to say that he had not formed “a hunch” of impairment,
despite years of training, and he described the area not for assessing the totality of circumstances,
but rather, as a response to the prosecutor asking where he was at when he initiated his stop.
Despite his training and experience, Officer Wilkinson did not clearly articulate having a
suspicion of DWI as a reason he initiated the traffic stop and, on occasion, said otherwise. Officer
Wilkinson’s testimony left such a light impression with the trial court that the offense itself is not
even mentioned in the court’s findings of fact and conclusions of law. Indeed, the court concluded
that Espinoza’s vehicle did not swerve or veer, but instead moved in a slow graduated manner
before moving in a similar manner back to the left, and only the vehicle’s tires touched the white
line marker on the street.
On appellate review, DWI is treated as having been implicitly rejected as a justification for
the stop given this offense is not mentioned in the court’s ruling. See State v. Alderete, 314
S.W.3d 469, 473 (Tex.App.--El Paso 2010, pet. ref’d). Following that rejection, I would therefore
imply findings regarding Wilkinson’s testimony that are consistent with the trial court’s ruling and
supported by the record. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Given
Officer Wilkinson’s equivocal testimony, there is ample ground to believe that the trial court found
his testimony lacking in detail or not credible. See Guzman v. State, 955 S.W.2d 85, 89
(Tex.Crim.App. 1997)(credibility and demeanor determinations must be given almost total
deference).
Finally, when determining whether an officer had reasonable suspicion to conduct a traffic
stop for DWI, we should consider the time of day and the area in which a traffic stop occurs, in
addition to testimony from the officer about the driving pattern of the vehicle under the totality of
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the circumstances. See Curtis v. State, 238 S.W.3d 376, 379–80 (Tex.Crim.App. 2007); Alderete,
314 S.W.3d at 473. However, I find Curtis and Alderete distinguishable. In Curtis, because the
trial court had ruled in favor of the prosecution, historical facts and inferences on review were
supportive of an officer engaging in a traffic stop based on reasonable suspicion of a driver
committing a DWI offense. Id., at 381. In Alderete, we reversed a trial court’s suppression
ruling because the officer testified the driver “was stopped not because of a violation of the traffic
code, but based on suspicion of intoxication . . . .” State v. Alderete, 314 S.W.3d 469, 473
(Tex.App.--El Paso 2010, pet. ref'd). Thus, Alderete included direct testimony from the officer
that he had suspected impairment of the driver as a basis for the initial stop.
Here, I would conclude that the trial court’s ruling does not fall outside the zone of
reasonable disagreement considering that Officer Wilkinson testified inconsistently about having
formed a reasonable suspicion to believe that Espinoza was impaired while driving. Contrary to
the majority opinion, I would afford greater deference to the trial court’s determination of historical
facts to the extent that a determination of reasonable suspicion depends to some extent on Officer
Wilkinson’s credibility in articulating his observations and reasonable inferences. On review, I
would hold that the trial court did not abuse its discretion in implicitly rejecting the State’s theory
that Wilkinson’s testimony supported reasonable suspicion of a DWI offense. Accordingly, I
would overrule the State’s first and fourth issue.
Failure to Maintain a Single Lane
I am also not convinced that Officer Wilkinson had reasonable suspicion to stop Espinoza
for failure to maintain a single lane. In its second issue, the State argues there is indisputable
visual evidence that an officer in Wilkinson’s position would have been justified in detaining
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Espinoza for failing to maintain a single lane. The State concedes in its brief that Officer
Wilkinson testified he had initiated his traffic stop not for a failure to maintain a single lane
violation, but for a failure to signal his intention to make a lane change. Rejecting the lane
violation, the trial court’s findings state, “[t]he video . . . does not show that the wheels crossed
completely over to the right lane, as stated by the officer, and he further stated that these
movements were not unsafe and posed no other problems.”
Texas Transportation Code Section 545.060, in pertinent part, states that “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.” TEX.TRANSP.CODE ANN. § 545.060(a)(1–2). In Leming v. State, the Court
of Criminal Appeals construed the statute for the first time and held it imposed two independent
requirements. 493 S.W.3d 552, 559 (Tex.Crim.App. 2016)(plur. op.). As Leming found, the
statute imposes a requirement aspect (to maintain a single lane as far as is practical) and a
prohibition aspect (do not change lanes unless it is safe to do so). Id. Because the two aspects
are joined by the conjunction “and,” Leming held that either statutory prohibition provides a means
of committing the same offense. Id. “[I]t 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. Lower court decisions that
interpreted the statute singularly, Atkinson v. State, 848 S.W.2d 813 (Tex.App.--Houston [14th
Dist.] 1993, pet. ref’d) and Hernandez v. State, 983 S.W.2d 867 (Tex.App.--Austin 1998, pet.
ref’d), respectively, were expressly rejected by Leming. Id., at 559.
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Like this case, the facts in Leming concerned the first prohibition only—whether the driver
failed to drive as nearly as practical entirely within a single lane of traffic. Id., at 561. In Leming,
the officer could only testify that the “tires were on the stripes,” and the video established that
much—but did not clearly show the vehicle entered the next lane. Id. In reviewing whether
reasonable suspicion had been met, Leming concluded it was not necessary to decide whether
driving on the divider stripes constituted a failure to stay “entirely within” a designated lane. Id.
“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.” Id., (quoting
Drago v. State, 553 S.W.2d 375, 377 (Tex.Crim.App. 1977)). Instead, Leming focused on a
review of the totality of the circumstances, which in that case included not only the testimony of
the officer but additionally included testimony from a concerned citizen. Id.
In Leming, the citizen involved had originally prompted the investigation by reporting that
a vehicle on the roadway was “swerving from side to side.” Id., at 554. When the arresting
officer first observed the defendant’s vehicle, he saw that it was traveling thirteen miles per hour
below the posted speed limit and that the driver “slowed down more and more.” Id. The vehicle
then began to swerve to the left, came “uncomfortably close” to the street curb, drifted back to the
right, and came “precariously close” to the curb at least twice more before the officer pulled the
vehicle over after following it for several miles. Id., at 554, 563. The officer justified his stop
pursuant to the community caretaking function. Id. Thus, the record in Leming showed that the
officer involved, “knew from personal observation that [the driver] had several times at least come
very close to entering the adjacent lane—even if he could not quite tell whether [he] had actually
entered it—and he knew that [the citizen] had also observed [the driver’s vehicle] to be ‘swerving’
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even before [the officer] arrived on the scene.” [Emphasis added]. Id., at 561. Under the
totality of the circumstances, Leming concluded the record justified a temporary detention to
investigate whether the driver involved failed to remain in his dedicated lane of traffic as far it was
practical to do so under the circumstances. Id. Thus, in analyzing the first prohibition (a
requirement to practically remain in a single lane), Leming reiterated it mattered not whether the
driver’s failure to remain in his lane was additionally unsafe under the circumstances. Id.
Here, in deciding whether reasonable suspicion of a lane violation supported the temporary
detention, the trial court considered Officer Wilkinson’s testimony, viewed the dashcam video,
and read the affidavit accompanying the search warrant. In conclusion of law four, the trial court
stated, “the defendant’s vehicle did not swerve or veer, but instead moved to the right in a slow,
graduated manner before moving in a similar manner back to the left.” Moreover, “[o]nly the
vehicle’s tires touched the white lane marker on the street.” More specifically, in rejecting the
lane violation as a basis for the stop, the trial court noted the officer testified he observed violations
at “2:10:47, 2:10:53, and 2:10:54,” for his determination to stop Espinoza. Reaching a contrary
conclusion from the officer, the trial court stated:
The video, on the contrary, does not show that the wheels crossed completely over
to the right lane, as stated by the officer, and he further stated that these movements
were not unsafe and posed no other problems. The traffic was light and no other
vehicles took evasive action to avoid the defendant’s vehicle, nor was there any
indication that the weaving was part of a more erratic behavior or was unsafe[.]
Thus, in addressing both prohibitions of the statute, the trial court found: (1) that the video
did not show that the wheels crossed completely over to the right lane as stated by the officer; and
(2) that movements seen were not unsafe and posed no other problems. The trial court concluded
that Espinoza’s vehicle moved in a slow, graduated manner before moving in a similar manner
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back to the left, and only the vehicle’s tires touched the white lane marker on the street. The trial
court further concluded that the officer did not have reasonable suspicion to stop the defendant and
further concluded that the stop was unlawful.
Viewing the record in the light most favorable to the trial court and deferring to the court’s
determination of historical facts, I would hold that the trial court did not abuse its discretion in
finding that Wilkinson had unlawfully detained Espinoza for a suspected violation of Section
545.060. See TEX.TRANSP.CODE ANN. § 545.060(a)(1–2). Both Officer Wilkinson’s testimony
and the dashcam video support the trial court’s finding that Espinoza’s vehicle mostly remained
within the marked lane in which he was traveling and did not make unsafe movements. Unlike
Leming, Espinoza did not swerve dangerously from left to right, did not come close to striking a
curb, and was not traveling well below the speed limit. Officer Wilkinson testified no one else
was on the road and Espinoza was not in danger of hitting anyone.
Unlike Leming, a concerned citizen did not call in and report additional swerving unseen
by the officer or unrecorded on video. Officer Wilkinson did not stop Espinoza pursuant to the
community caretaking function, like the officer in Leming did, but originally testified that it was
because of a purported signal violation. See Leming, 493 S.W.3d at 554. Although Officer
Wilkinson did not testify how long he followed Espinoza before pulling him over, the time stamp
of the video clearly shows it was under a minute—far less than the “several miles” and “several
minutes” of time and distance reported by the arresting officer in Leming. See id., at 554.
Based on the totality of the circumstances, I would hold that the trial court did not err by
determining the stop lacked reasonable suspicion for failure to maintain a single lane. The trial
court’s findings of historical facts—the tire’s touch of the lane marker coupled with moving to the
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right in a slow, graduated manner before moving in a similar manner back to the left—without
other indicators of criminal activity, were not enough to justify the stop for a violation of failing
to maintain a single lane. I would overrule the State’s second issue.
Lane Change Violation
Finally, although the majority also does not reach this issue in its opinion, I would hold
that Officer Wilkinson lacked reasonable suspicion to stop Espinoza for failure to signal a lane
change. In its third issue, the State argues Wilkinson had sufficient reasonable suspicion to stop
Espinoza as he testified he observed Espinoza’s right front tire cross over the white lane marker in
violation of Texas Transportation Code Section 545.104, and his testimony was supported by the
video evidence.
Texas Transportation Code Section 545.104(a), states in pertinent part, “[a]n operator shall
use the turn signal . . . to indicate an intention to turn, change lanes, or start from a parked position.”
[Emphasis added]. See TEX.TRANSP.CODE ANN. § 545.104(a). Thus, from the plain language of
the statute, the driver’s intention to change lanes is required for Section 545.104 to apply. See,
e.g., Power v. State, No. 13-05-693-CR, 2006 WL 2516525, at *2–3 (Tex.App.--Corpus Christi
July 27, 2006, no pet.)(mem. op., not designated for publication); State v. Griffin, No. 04-12-
00192-CR, 2003 WL 21018319, at *2 (Tex.App.--San Antonio May 7, 2003, no pet.)(not
designated for publication). Weaving, such that only one or two of the vehicle’s tires cross over
the lane marker, does not constitute a lane change under Section 545.104 when the driver did not
intend to change lanes. See, e.g., Power, 2006 WL 2516525, at *2–3 (holding that an officer did
not have reasonable suspicion to stop a driver for failure to signal a lane change when the driver
never changed lanes, but instead, the driver’s two right tires only drifted into the outside lane and
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back). As recently confirmed by the Court of Criminal Appeals, “[c]riminal statutes outside the
penal code must be construed strictly, with any doubt resolved in favor of the accused.” State v.
Cortez, 543 S.W.3d 198, 206 (Tex.Crim.App. 2018)(quoting Stevenson v. State, 499 S.W.3d 842,
849 (Tex.Crim.App. 2016)).
Here, the trial court’s factual findings state that Wilkinson testified he observed Espinoza
drift from lane to lane approximately two times and failed to signal his lane change. Moreover,
its conclusions of law state that Wilkinson identified violations he observed at 2:10:47, 2:10:53,
and 2:10:54. After viewing the video, however, the trial court concluded that the video did not
support the officer’s testimony as it did not show that the wheels crossed completely over to the
right lane as stated by the officer.
I would hold that the record supports the trial court’s findings as there is nothing to indicate
that Espinoza intended to change lanes nor ever executed a lane change until after the officer turned
on his emergency lights to initiate a traffic stop. Moreover, as stated earlier, Officer Wilkinson’s
testimony on the issue was equivocal and the State failed to elicit sufficient facts to support an
objective determination of a signal violation. In fact, Wilkinson admitted that a driver does not
need to use a turn signal if he does not intend to change lanes. On this record, I would hold that
the trial court did not abuse its discretion in concluding that Officer Wilkinson was not justified in
stopping Espinoza for suspicion of violating Section 545.104. See Power, 2006 WL 2516525, at
*2–3; Griffin, 2003 WL 21018319, at *2. I would overrule the State’s third issue.
Conclusion
In sum, I do not believe that Officer Wilkinson had reasonable suspicion to stop Espinoza
for a traffic offense or for DWI. I would overrule the State’s issues and affirm the trial court’s
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decision granting Espinoza’s motion to suppress, and therefore I respectfully dissent from the
majority in this case.
November 30, 2018
GINA M. PALAFOX, Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
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