Reyes v. State

603 S.W.3d 543

Juan Torres REYES, Appellant,

v.The STATE of Texas, Appellee.

No. 08-18-00145-CR

Court of Appeals of Texas, El Paso.

June 18, 2020

Mario Ortiz, Law Office of Mario Ortiz Saroldi, 310 N. Mesa, Ste. 900, El Paso, TX 79901, for Appellant.

Jaime E. Esparza, District Attorney, El Paso County Courthouse, 500 E. San Antonio, Suite 201, El Paso, TX 79901, for Appellee.

Before Alley, C.J., Rodriguez, and Palafox, JJ.

OPINION

GINA M. PALAFOX, Justice

Appellant Juan Torres Reyes appeals from his conviction for driving while intoxicated.

In his sole issue on appeal, he urges that the trial court abused its discretion by denying his motion to suppress evidence obtained as a result of a traffic stop which he contends was made without reasonable suspicion. We affirm.

I. BACKGROUND

On the morning of January 10, 2016, at approximately 1:30 a.m., El Paso police officers Adam Himes and Isaac Ledesma observed Reyes' car driving in two lanes of a multi-lane street. Officer Himes described Reyes' action as "driving in the middle lane and the right lane directly over the white line." Officer Ledesma described it as "driving in between the second and third lane, not choosing a lane for a good amount of distance." The officers testified at the suppression hearing, and the arrest report reflects, that the officers' reason for pulling Reyes over was "lane straddling." Neither officer testified concerning whether the movement of Reyes' vehicle was unsafe.

Upon stopping Reyes' vehicle, the officers noted that Reyes' breath had a strong smell of alcohol, his eyes were bloodshot, and his speech was slurred. Reyes told the officers he was coming from a nearby bar, where he had consumed two beers. Officer Ledesma administered field sobriety tests, which Reyes failed.

Reyes was arrested and charged with driving while intoxicated. He filed a motion to suppress based on his contention that the officers lacked reasonable suspicion to make a traffic stop. The court denied the motion and entered findings of fact reflecting the facts as recited above. The court also entered conclusions of law in which it stated that the traffic stop was based on reasonable suspicion and was, therefore, lawful.

Reyes ultimately entered a plea of guilty pursuant to a plea agreement. The trial court entered a judgment of conviction based on that plea agreement and certified Reyes' right to appeal.

II. DISCUSSION

In a single issue on appeal, Reyes argues that the trial court abused its discretion by denying his motion to suppress because the evidence does not support a reasonable suspicion that Reyes committed a violation of Section 545.060 of the Texas Transportation Code (" Section 545.060"). Specifically, Reyes contends that the evidence does not show that his failure to maintain a single lane was unsafe. See TEX. TRANSP. CODE ANN. § 545.060(a)(2).

A. Standard of Review

A trial court's ruling on a motion to suppress is reviewed for abuse of discretion. Layton v. State , 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). In a case such as this, where the police make a warrantless stop, the State bears the burden of showing that the police had reasonable suspicion to justify that stop. See Castro v. State , 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). "Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity." Id. (citing Garcia v. State , 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) ). Determining whether reasonable suspicion exists requires considering the totality of the circumstances, "giving almost total deference to the trial court's determination of historical facts and reviewing de novo the trial court's application of the law to facts not turning on credibility and demeanor." Id. (citing Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ).

B. Transportation Code Section 545.060

The only basis offered by the State for the officers' stop of Reyes' vehicle was that the officers had a reasonable suspicion that Reyes violated Section 545.060 of the Texas Transportation Code. That section provides, in pertinent part:

(a) 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.

It is undisputed that the roadway on which Reyes was driving was divided into three clearly marked lanes for traffic. Reyes also does not dispute on appeal that he was not driving "as nearly as practical entirely within a single lane[.]" See id. In any event, both police officers unequivocally testified that Reyes was straddling the line between two lanes, and it was within the trial court's discretion, as the sole judge of the weight and credibility of the evidence, to accept that testimony. See State v. Mendoza , 365 S.W.3d 666, 669 (Tex. Crim. App. 2012).

The dispute in this case is whether, having shown a violation of Section 545.060(a)(1) —that Reyes failed to maintain a single lane—the State was also required to show a violation of Section 545.060(a)(2) —that Reyes' movement from a single lane was unsafe. Reyes relies on the holding of the Austin Court of Appeals in Hernandez v. State , 983 S.W.2d 867 (Tex. App.—Austin 1998, pet ref'd), 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." Id. at 871. The State, on the other hand, relies exclusively on the contrary holding of a plurality of the Texas Court of Criminal Appeals in Leming v. State , 493 S.W.3d 552 (Tex. Crim. App. 2016) (plurality op.). That plurality examined the reasoning of the Hernandez court, expressly rejected its interpretation of Section 545.060, and held instead that "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.

Ordinarily, a holding of the Texas Court of Criminal Appeals would be dispositive, and our analysis would end here. However, because Leming is a plurality opinion, it is not binding authority. See Baumgart v. State , 512 S.W.3d 335, 342 n.42 (Tex. Crim. App. 2017) ; Unkart v. State , 400 S.W.3d 94, 100 (Tex. Crim. App. 2013). It may, however, be considered for its persuasive value. See Unkart , 400 S.W.3d at 101 ; State v. Hardy , 963 S.W.2d 516, 519 (Tex. Crim. App. 1997).

This Court has previously held, in a handful of unpublished, pre- Leming opinions, that a violation of Section 545.060 requires a showing of both a failure to stay within a single lane and that movement from that lane was not safe or was not made safely. See State v. Gendron , No. 08-13-00119-CR, 2015 WL 632215, at *4 (Tex. App.—El Paso Feb. 11, 2015, pet. ref'd) (not designated for publication); Lara v. State , No. 08-07-00350-CR, 2009 WL 4922473, at *3 (Tex. App.—El Paso Dec. 22, 2009, no pet.) (not designated for publication); Rodriguez v. State , No. 08-04-00083-CR, 2005 WL 1315003, at *2 (Tex. App.—El Paso June 2, 2005, no pet.) (not designated for publication); Galindo v. State , No. 08-03-00236-CR, 2004 WL 1903404, at *2 (Tex. App.—El Paso Aug. 26, 2004, no pet.) (mem. op., not designated for publication); Waltmon v. State , No. 08-03-00317-CR, 2004 WL 1801793, at *4 (Tex. App.—El Paso Aug. 12, 2004, pet. ref'd) (not designated for publication); Crain v. State , No. 08-02-00103-CR, 2003 WL 1386942, at *2 (Tex. App.—El Paso Mar. 20, 2003, no pet.) (mem. op., not designated for publication).

We note, however, that none of our previous opinions contain an independent analysis of Section 545.060. Rather, each relied on the persuasive force of Hernandez.¹ And, second, because our prior opinions are unpublished, they lack precedential value. See TEX. R. APP. P. 47.7 (unpublished opinions in criminal cases have no precedential value).

This Court has only addressed, in a single published opinion, whether a violation of Section 545.060 requires a failure to comply with both parts of subsection (a). See State v. Five Thousand Five Hundred Dollars in U.S. Currency , 296 S.W.3d 696 (Tex. App.—El Paso 2009, no pet.). But even then, we did not engage in any substantive analysis of the statutory interpretation issue, but rather relied on Hernandez. The entirety of our discussion of the matter was as follows:

Section 545.060 of the Texas Transportation Code requires a driver operating a vehicle on a roadway divided into two or more clearly marked lanes to drive as nearly as practical within a single lane. TEX. TRANSP. CODE ANN. § 545.060 (Vernon 1999). Further, the driver may not move from the lane unless the movement can be made safely. Id. Courts have held 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. See Hernandez v. State , 983 S.W.2d 867, 871 (Tex. App.—Austin 1998, pet. ref'd). Citing Hernandez , Grazioso argues that the trial court's legal conclusion is correct because the State failed to offer any evidence that his movement was unsafe. We agree with Grazioso that the State did not offer any evidence indicating that Grazioso's movement out of his lane was unsafe. Thus, the State did not establish that an officer would reasonably believe that a violation of Section 545.060 had occurred.

Id. at 703.

We are faced, then, with the following situation concerning the central issue in this appeal: (1) the bulk of our prior opinions on the issue are not binding precedent because they are unpublished; (2) our one published opinion on the subject lacks independent analysis of...