Leming v. State

• Decision Date: 13 April 2016
• Docket Number: NO. PD–0072–15,PD–0072–15
• Citation: 493 S.W.3d 552
• Parties: James Edward Leming, Appellant v. The State of Texas
• Court: Texas Court of Criminal Appeals

493 S.W.3d 552

James Edward Leming, Appellant

v.The State of Texas

NO. PD–0072–15

Court of Criminal Appeals of Texas.

DELIVERED April 13, 2016

Rehearing Denied July 27, 2016

Clement Dunn, Longview, TX, for Appellant.

Lisa McMinn, State Prosecuting Attorney, Austin, TX, for the State.

OPINION

Yeary, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV in which Keller, P.J., and Meyers, Alcala and Richardson, JJ., joined, and an opinion with respect to Part II in which Keller, P.J., and Meyers and Richardson, JJ., joined.

Appellant pled guilty to, and was convicted of, the offense of driving while intoxicated, a felony in this instance because he had two prior DWI convictions. Tex. Penal Code § 49.09(b)(2). The trial court assessed his punishment at ten years' incarceration in the penitentiary. Prior to his plea, Appellant filed a motion to suppress the product of the traffic stop by which the offense was discovered. The trial court denied his motion to suppress, and Appellant challenged that ruling in a single point of error on appeal.

The Sixth Court of Appeals reversed the trial court's ruling, holding that the trial court should have granted the motion to suppress. Leming v. State, 454 S.W.3d 78 (Tex.App.–Texarkana 2014). The court of appeals concluded that, on the particular facts of this case: 1) the arresting officer lacked even a reasonable suspicion to detain Appellant for the offense of failure to maintain a single lane, under Section 545.060(a) of the Texas Transportation Code ; and 2) the stop was not a legitimate exercise of the arresting officer's community care-taking function. Id. at 84, 86. We granted the State Prosecuting Attorney's (SPA) petition for discretionary review, and we now reverse the judgment of the court of appeals.

I. BACKGROUND

In the Trial Court

Manfred Gilow, the only witness at the hearing on Appellant's motion to suppress, was on duty as a Longview police officer on the afternoon of January 20, 2012. At around 2:00 p.m., his dispatcher notified him of a citizen's report of a vehicle on the road that was “swerving from side to side.” Gilow was informed that the reporting party's name was “Arliss,” and that Arliss had described the swerving vehicle as “[a]n older-style white Jeep.” Gilow passed Arliss, who was following the Jeep in a Honda, and, as the recording made from Gilow's dash cam shows, having “advised the reporting party to back off,” Gilow pulled in behind the Jeep. Gilow followed the Jeep for several minutes over several miles. During that time he observed on radar that the Jeep was traveling thirteen miles per hour below the posted speed limit and that the driver “slowed down more and more.” Gilow saw that the Jeep “was drifting in its lane to the left, to the center stripe to the—to the left lane; tires were on the stripes. Went back to the right several times, almost hit the curbs twice—the curb.”

The dash cam video bears out Gilow's account. Beginning at 2:07:11 p.m., it shows Gilow approaching behind Arliss's Honda, which is in the right hand lane of a relatively straight, four-lane divided roadway, with two lanes moving in each direction and curbs rather than shoulders. The Honda is following a white Jeep at a safe distance, and it can be seen to brake as Gilow's patrol car passes it in the left hand lane and then pulls in behind the Jeep in the right hand lane. The Jeep immediately swerves to the left (2:07:28), starting from a position fairly close to the curb and cutting all the way over to the broken white stripes that divide the lanes, and at least touching them. Within ten seconds (2:07:38), the Jeep has veered back to the right side of its lane, uncomfortably close to the curb; then (2:07:45) it returned to the broken white stripes, again at least touching them. Another seven seconds later (2:07:52), the Jeep has drifted back to the right, but not as close to the curb this time. Six seconds after that (2:07:58), the Jeep has migrated back toward the broken white stripes, but this time it does not touch them. For the ensuing several minutes—including a thirty second interval during which it sits idly at a stop light in front of the patrol car (2:08:30 to 2:09:00)—the Jeep does not weave as noticeably, although it does come precariously close to the curb at least twice more. Gilow eventually pulls it over into a parking lot (2:10:55).

As the video confirms, Gilow did not stop the Jeep immediately, opting instead, because of “the heavy traffic[,]” to wait until they got “to the 3000 block, because I know there's parking lots where he could pull over.” To stop the Jeep sooner, in his estimation, “would have caused danger to others, so I waited a little bit to get to a better stop.” Gilow justified his stop of the Jeep in terms of his community care-taking function. Asked what his “role as a police officer [was] at this point[,]” he explained:

That the driver was somehow impaired, a medical issue, a lot of stops, this—welfare check stops, they have medical issues that—diabetic shock, 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.

When Appellant exited the Jeep, Gilow detected “a mixed odor, like cigarettes and old liquor.” Appellant denied that he had been drinking, but he admitted “that he took some clonazepam and hydrocodone.” After administering field sobriety tests, Gilow arrested Appellant for driving while intoxicated.

After Gilow's testimony, the prosecutor argued that Appellant's stop was indeed justified “to check on this guy and make sure that he's either okay or not okay to be on the road.” Without addressing this justification, counsel for Appellant argued that “case law is clear that slight maneuvering within a lane, which is really all they have here, is not the basis for a traffic stop under the guise of either reasonable suspicion or probable cause, especially in the absence of any articulate traffic violation.” He recommended that the trial court review the Sixth Court of Appeals's opinion in Bass v. State, 64 S.W.3d 646 (Tex.App.–Texarkana 2001, pet. ref'd), holding that “a violation of Section 545.060(a) [of the Texas Transportation Code] occurs only when a vehicle fails to stay within its lane and that movement is not safe or is not made safely.” Id. at 650 ; Tex. Transp. Code § 545.060(a).

Taking the case under advisement, the trial court eventually made the following written “findings and ruling:”

1) The video ... 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 upon a totality of the circumstances, the officer was justified in stopping the vehicle.

3) The Defendant's Motion to Suppress is denied.

Appellant pled guilty and appealed the trial court's ruling on his motion to suppress.

On Appeal

In reversing the trial judge's ruling, the court of appeals first took issue with his finding of fact that the video demonstrates that the Jeep clearly crossed the broken white stripes separating the lanes of traffic.¹ But even taking that finding of fact as supported by the record, the court of appeals rejected the trial court's conclusion that crossing into an adjacent lane of traffic is enough to constitute a violation of the provision the trial court must have relied upon (having promised the parties that he would review the Bass opinion), namely, Section 545.060(a) of the Transportation Code. Leming, 454 S.W.3d at 83. “In order for it to have been unlawful,” the court of appeals concluded, “the encroachment must have been made unsafely. On each of the two instances [in which] one could judge that [Appellant] encroached on the line dividing the lanes, there was no real danger of his colliding with another vehicle in the adjacent lane.” Id. The fact that Gilow was acting on information provided by a named informant in addition to his own observations did not change the calculus for the court of appeals since, even treating “Arliss” as a reliable informant (a proposition the court of appeals found dubious), he did not supply any additional information from which it could be inferred that Appellant's “swerving” was unsafe. Id. at 83–84. Moreover, the court of appeals concluded, Gilow's asserted justification for stopping Appellant was not a reasonable exercise of his community care-taking function. Id. at 86.

On Discretionary Review

The SPA does not now take issue with the court of appeals's conclusion with respect to Gilow's community care-taking function, and that issue is not before us. Instead, the SPA argues that the court of appeals erred in its construction of Section 545.060(a) of the Transportation Code. As the SPA reads the statute, the failure to maintain a single lane of traffic need not be “unsafe” to constitute an offense. Moreover, the SPA maintains, the court of appeals gave short shrift to the significance of Arliss's information in determining whether a traffic code violation occurred. Finally, and in any event, the SPA argues that the information that Arliss provided, taken together with Gilow's own observations of the Jeep, was sufficient to supply at least a reasonable suspicion that its operator was driving while intoxicated, and the court of appeals should have upheld the stop on that basis (though this argument was not made there).

II. FAILURE TO MAINTAIN A SINGLE LANE

As enacted in 1947, the predecessor to current Section 545.060, Section (a), of the Transportation Code read:

Sec. 60. Whenever any roadway has been divided into two (2) or more clearly marked

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