Leming v. State

• Decision Date: 17 December 2014
• Docket Number: No. 06–13–00264–CR,06–13–00264–CR
• Parties: James Edward Leming, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

454 S.W.3d 78

James Edward Leming, Appellant

v.The State of Texas, Appellee

No. 06–13–00264–CR

Court of Appeals of Texas, Texarkana.

Submitted: November 10, 2014

Decided: December 17, 2014

Discretionary Review Granted April 22, 2015.

Clement Dunn, Attorney at Law, Longview, TX, for appellant.

Zan Colson Brown, Assistant District Attorney, Longview, TX, for appellee.

Before Morriss, C.J., Carter and Moseley, JJ.

OPINION

Opinion by Justice Moseley

James Edward Leming was stopped by a Longview police officer as he drove his automobile along a busy thoroughfare. The State argues the officer's traffic stop of Leming was proper under the community caretaking function of the officer's law enforcement duty, citing the officer's testimony that he was concerned that Leming might have been somehow in distress.¹ Leming moved to suppress evidence obtained as a result of this traffic stop and, after the trial court overruled his motion, Leming entered a plea of guilty. We find the officer's actions were not reasonable in light of the totality of the circumstances, and the trial court erred to deny the suppression motion.

I. Traffic Stop

Longview police officer Manfred Gilow testified that about 2:00 p.m. January 20, 2012, he was dispatched to investigate a report from a caller who reported a vehicle “swerving from side to side.” At the suppression hearing, the only reference to the identity of the caller was from Gilow, who made reference to the caller only as “Arliss.”² After having been alerted to the content of the call, Gilow located the reported vehicle, eventually shown to be driven by Leming, and began tracking that car. Gilow testified that he also made contact with Arliss, the informant (who was still following Leming's car), telling Arliss to “back off” so Gilow could better follow and observe the suspect vehicle.

Gilow followed Leming for about three minutes before conducting a traffic stop.³ During the video-recorded period while Gilow was following, Leming's vehicle was observed in the outside lane. The road where this occurred was five lanes in width, with two lanes going each direction and a dedicated center turning lane. Almost immediately after Gilow's video camera began to record the incident, Leming's vehicle neared the white stripes separating the two lanes, and Lemings tires went astride the line and may have crossed it quite briefly. A similar approach (and, perhaps, encroachment) of the line was repeated shortly thereafter. From reviewing the video recording, it cannot be conclusively said that the vehicle crossed the lines for the lanes. Gilow's testimony was that the “tires were on the stripes.” Later in the video recording, Leming's truck also drifted to the right, towards the curb. Gilow testified that Leming's car almost struck the curb twice; on the video recording, the vehicle appears to drift toward the curb on more than one occasion, coming within a few inches of the curb itself.

About thirty seconds after Leming's car touches (and possibly crosses) the lane markers separating his outside lane of traffic from the inside lane, two cars pass Leming in that inside lane. Throughout the period covered in the recording, a large number of automobiles are shown to pass, traveling on the two approaching lanes which are across the dedicated turn lane, between Leming's truck and the oncoming traffic. Gilow described the traffic as “pretty good” or “heavy.”

Gilow indicated that rather than following Leming as long as he did, he “would have liked to stop him way earlier ... but the traffic was too heavy.” Gilow said he waited until there was an area with parking lots in the vicinity so he would not have to pull the driver over in such a way as to block the road and thereby put other drivers in danger. He observed the suspect driving thirteen miles below the posted limit of forty-five miles per hour, and as Gilow followed and observed, the driver “slowed down more and more.” It bears noting that during the video-recorded period, Leming came to a complete stop at a traffic light and exhibited no unusual driving behavior except that noted above, proceeding to advance with the rest of the traffic, although slower than the prevailing traffic pattern.

Gilow was concerned

[t]hat the driver [was] somehow impaired, a medical issue, a lot of stops, this—welfare check stops, they have medical issues that—diabetic shocks, they just don't know when they're—still driving, functioning, but they really don't—don't know. Due to the fact that it was way below speed, the swerving in its lane itself, right, left, almost hitting the curbs twice, it was an indication that the driver is somehow either distracted or physically not able to operate this motor vehicle correctly.

After stopping the vehicle, Gilow observed that Leming, the driver, appeared to be “very tired,” that he “had a hard time keeping his eyes open,” and that “[h]e was just very, very exhausted.” Leming admitted having taken clonazepam and hydrocodone. He was arrested for driving while intoxicated (DWI). After having been indicted for felony DWI and subsequent to an unfavorable ruling on his motion to suppress, Leming entered his guilty plea to that offense.See Tex. Penal Code Ann. § 49.09(b) (West Supp. 2014).

Leming argues the trial court should have suppressed any evidence which came from Gilow's stop because the stop was neither reasonable nor justified under the circumstances. At the hearing, the State never specifically invoked the community caretaking function, in so many words; but as can be seen in some of Gilow's testimony, he testified he was concerned about the welfare of the driver, who turned out to be Leming.⁴

The trial court's order denying the motion to suppress made no mention of the community caretaking function of the law enforcement officer:

1) The video, State's Pre-trial exhibit 1, clearly shows the Defendant's vehicle cross the center stripe and move partially into another lane of traffic. This is a violation of the law.

2) In addition, the officer had received information from a named informant that the Defendant's vehicle was driving erratically. Based on a totality of the circumstances, the officer was justified in stopping the vehicle.

Irrespective of whether the community caretaking function was considered by the trial court, we will “uphold the trial judge's ruling if it is reasonably grounded in the record and correct on any theory of law applicable to the case.” Wade v. State, 422 S.W.3d 661, 667 (Tex.Crim.App.2013).⁵

First, we read the trial court's order denying Leming's request for suppression as finding that Leming committed a traffic offense by leaving his lane of traffic and crossing into the next, observing that the video recording of the events leading to the traffic stop “clearly shows the Defendant's vehicle cross the center stripe and move partially into another lane of traffic. This is a violation of the law.” As we have said, we have reviewed the video-recorded exhibit and cannot say definitively that Leming's truck crossed into the next lane. However, even deferring to the trial court's view that Leming left his lane of traffic,⁶ the record does not support a finding that a traffic offense occurred. From the context of Leming's argument to the trial court and statements of the trial court, it appears the trial court's ruling found a violation of Section 545.060(a) of the Texas Transportation Code, requiring a driver to drive, as nearly as practical within a single lane and prohibiting the changing of lanes unless such can be done safely. Tex. Transp. Code § 545.060(a) (West 2011). Here, Leming directed the trial court's attention to Bass v. State, 64 S.W.3d 646, 651 (Tex.App.–Texarkana 2001, pet. ref'd), where this Court found the officer's warrantless traffic stop to have been unlawful. The basis for the traffic stop was Bass' failure to maintain a single lane; but even though there was evidence that he changed lanes, there was no evidence that it was done in an unsafe manner. Therefore, the traffic stop did not fall within the requisites of the section of the Transportation Code the officer invoked as the basis for an unlawful act. Id. The trial court, upon announcing it was taking the matter under advisement, specifically stated an intention to read Bass .

Even should we concur with the conclusion of the trial court that Leming's car was shown to have encroached into the adjacent lane, that act alone does not constitute a traffic offense. In order for it to have been unlawful, the encroachment must have been made unsafely. On each of the two instances one could judge that Leming encroached on the line dividing the lanes, there was no real danger of his colliding with another vehicle in the adjacent lane. The closest time interval to the occupancy of that adjacent lane by another car was about fifteen seconds after Leming was no longer near the dividing line. When one takes the speed of the traffic and the totality of the circumstances into account, we cannot say that any such encroachment from lane to lane by Leming was done in an unsafe manner. Therefore, we find the trial court's ruling that the stop was prompted by the officer's observation of a traffic violation to be unsupported by the record.

The trial court also found that because Gilow was acting on information from a “named informant” claiming that Leming's “vehicle was driving erratically,” he was justified in stopping Leming's vehicle. However, the record as it existed at the time the trial court ruled on the issue of suppression does not support the trial court's finding that Gilow was responding to information from a named informant. Although the State's questioning of Gilow and its closing argument at trial asserted that the caller gave his name and contact information, that information (other than the name “Arliss”) was not developed or presented at the suppression hearing. There was no evidence presented that would have given Gilow any reason to attribute...