Abney v. State, No. PD–1231–11.

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 394 S.W.3d 542
• Decision Date: 27 March 2013
• Parties: Rickey Dewayne ABNEY, Appellant v. The STATE of Texas.
• Docket Number: No. PD–1231–11.

394 S.W.3d 542

Rickey Dewayne ABNEY, Appellant
v.
The STATE of Texas.

No. PD–1231–11.

Court of Criminal Appeals of Texas.

March 27, 2013.

[394 S.W.3d 544]

Dan Wood Jr., Attorney at Law, Terrell, TX, for Appellant.

Sue Korioth, Special Prosecutor, Dallas, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION
MEYERS, J., delivered the opinion of the Court in which KELLER, P.J., and PRICE, JOHNSON, HERVEY, COCHRAN, and ALCALA, JJ., joined.

Appellant filed a motion to suppress evidence after he was found in possession of marijuana during a traffic stop. The trial court denied the motion, and Appellant subsequently pled nolo contendere to the marijuana possession charge. He was sentenced to fifteen days in county jail. Appellant appealed the conviction, and the court of appeals held that the trial court did not err by denying his motion to suppress.¹ Appellant filed a petition for discretionary review, which we granted to determine whether the court of appeals erred when it held that the officer had reasonable suspicion to stop Appellant for the traffic code violation of driving in the left lane without passing. Having determined that the officer did not provide specific, articulable facts that would lead him to reasonably suspect that Appellant was engaged in a traffic offense, we conclude that the court of appeals erred in holding that the trial court properly denied Appellant's motion to suppress. We will reverse.

BACKGROUND Summary of Facts

Kaufman County Sheriff's Deputy Billy Kilgore followed Appellant for approximately one mile before pulling him over for driving in the left lane while not passing.

[394 S.W.3d 545]

When Appellant turned left onto a crossover to make a U-turn, Kilgore pulled the vehicle over, intending to identify the driver and issue a citation or warning regarding the traffic violation. Appellant was arrested and charged with possessing under two ounces of marijuana.

Appellant filed a motion to suppress evidence, which alleged that the traffic stop was unlawful. At the motion to suppress hearing, Kilgore testified that Appellant was traveling east on Highway 175, the road was straight, Appellant was not passing any other vehicles, and there were no vehicles in the right-hand lane. Kilgore said that a “left lane for passing only” sign was located about fifteen to twenty miles from where he first observed Appellant and that the sign provided the reasonable suspicion necessary to make the stop. Appellant presented testimony from David Miller, an investigator for the Public Defender's Office of Kaufman County, stating that the “left lane for passing only” sign Kilgore relied upon was twenty-seven miles from the conducted traffic stop. Defense counsel argued that Appellant was driving in the left lane in order to make a crossover and had not seen the sign. No additional evidence was submitted to the court regarding what transpired after the traffic stop or the circumstances of the search which produced the marijuana.

Procedural History

The trial court denied Appellant's motion to suppress. The trial court filed findings of fact including that the highway is “posted with signs that give notice to occupants that the left lane is for passing only,” that Kilgore observed Appellant travel in the left lane “for a distance he estimated at one mile before making a u-turn at a crossover,” and that Kilgore made a traffic stop “with the intention of issuing a citation for the offense of driving in the left lane without passing another vehicle.” The trial court filed conclusions of law stating, “The officer had the right to make a routine traffic stop under the circumstances because the Defendant was driving his vehicle in the left lane without passing another vehicle. Deputy Kilgore had a reasonable suspicion that the law was being violated in his presence.” The trial court also found that “the legal test for a traffic stop is that another reasonable officer could have made the same determination as Deputy Kilgore that the Defendant's vehicle violated the Transportation Code which would justify issuing the driver a citation for the observed violation.”

Appellant pled nolo contendere to the marijuana possession charge and was sentenced by the court to fifteen days in the county jail. Appellant appealed the trial court's order denying his motion. On appeal, Appellant argued that there was no reasonable suspicion because the “left lane for passing only” sign was not at the place of the alleged violation. The court of appeals overruled Appellant's sole issue and held that the trial court did not err by denying Appellant's motion to suppress.² The court of appeals stated that an officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law and that the State is not required to prove the individual committed a traffic violation, only that the officer believed a violation was in progress. ³ The court of appeals explained that, although the lack of a sign at the time and place of the alleged violation may be a defense to prosecution for the traffic violation, the placement of the sign does not establish the test for reasonable

[394 S.W.3d 546]

suspicion.⁴ Citing our decision in Garcia v. State,⁵ along with Mouton v. State,⁶Green v. State,⁷ and Baker v. State,⁸ the court explained that the test is objective, based on specifically articulated facts that would lead an officer to reasonably conclude that there was a traffic violation. The court of appeals determined that the evidence supported the trial court's finding that Kilgore articulated specific facts that led him to reasonably conclude Appellant was violating the “left lane for passing only” sign.⁹ Appellant filed a petition for discretionary review asking us to consider whether the court of appeals erred when it held reasonable suspicion was proven to stop Appellant's vehicle for the traffic code violation of driving in the left lane without passing.

Appellant's Argument

Appellant argues that the court of appeals misconstrued this Court's cases by holding that the State did not have to prove that he committed the traffic violation of driving in the left lane without passing. Appellant cites our decision in Amador v. State¹⁰ to support his contention that the court of appeals's decision improperly shifts the burden to the defendant to show that the stop was unreasonable.¹¹ The specific violation Appellant allegedly committed was the failure to comply with a traffic-control device by driving in the left lane without passing. However, the sign that said “left lane for passing only” was over twenty miles away. Appellant contends that the applicable language in the Transportation Code stating that a traffic control device cannot be enforced “if at the time and place of the violation the device is not in proper position and sufficiently legible to an ordinarily observant person” is clear and unambiguous.¹² According to Appellant, because of this clear language, the statute cannot be enforced against him because there were no signs prohibiting driving in the left lane at the time and place where he was stopped. Appellant also argues that the cases the court of appeals relied upon in which the placement of the sign led officers to reasonably conclude that a traffic offense was being committed are distinguishable from the facts of this case. Further, Appellant asserts that the determination that the placement of these signs is merely a defense is flawed logic because these cases show that the placement of the signs is a valid factor to consider when determining if there was reason to believe a violation occurred. Appellant states that he did not violate Section 544.004 based on these

[394 S.W.3d 547]

facts and that Kilgore did not testify to the necessary facts to show a violation.

State's Argument

The State argues that the facts before the trial court were sufficient to support the conclusion that Kilgore had reasonable suspicion to briefly detain Appellant to investigate the violation in question. The State contends that Appellant's claim that the sign was too far away from the location of the traffic stop is relevant to any trial for violation of the Transportation Code provision, but irrelevant to the question of reasonable suspicion to support this traffic stop. Like Appellant, the State focuses on the “at the time and place of the violation” language in Section 544.004(b); however, the State asserts that the statute does not require proof that the officer...