In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-17-00408-CR ___________________________
CHASE DANIEL KILLION, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 1 Tarrant County, Texas Trial Court No. 1497685
Before Gabriel, Kerr, and Pittman, JJ. Memorandum Opinion by Justice Pittman MEMORANDUM OPINION
Appellant Chase Daniel Killion appeals from his conviction for driving while
intoxicated. In his sole point, Appellant argues that the trial court erred in denying his
motion to suppress. Because we hold that sufficient evidence supported the trial
court’s ruling, we affirm.
BACKGROUND
The State charged Appellant by information with driving while intoxicated with
a blood alcohol content of 0.15 or more. The information included an enhancement
paragraph alleging a prior misdemeanor conviction for deadly conduct. Appellant
filed a motion to suppress asserting that he had been arrested and detained without a
warrant and without probable cause that he had committed a traffic violation or that a
crime was in progress. The trial court denied the motion after a hearing.
The trial court made the following findings of fact and conclusions of law:
1. On 2/15/2017, Officer [Cleburn] Eardley of the Sansom Park Police Department was traveling on S[tate] Highway 199 in Sansom Park, TX when he saw a motor vehicle traveling on the same highway in the opposite direction. The officer made a u-turn and proceeded to catch up with the vehicle once they were traveling the same direction.
2. The driver of the motor vehicle was eventually identified as [Appellant].
3. Officer Eardley, a credible witness, testified, and the Court so finds, that as the officer traveled behind [Appellant]’s vehicle, [Appellant]’s vehicle veered off to the improved shoulder to the right of the highway 3 times.
2 4. Officer Eardley believed that [Appellant] did not drive entirely within a single lane and also that [Appellant]’s movement from his lane was not safe because he was traveling in close proximity to cars in front of him, and those drivers ahead of [Appellant] could become distracted due to [Appellant]’s repeated drifting to the right in a short period of time directly behind them.
5. Because [Appellant] did not drive entirely within a single lane, and it was unsafe to do so, the officer believed [Appellant] was in violation of Texas Transportation Code [Section] 545.060.[1]
6. The Officer also cited witnessing a second traffic code violation, namely Texas Transportation Code [Section] 545.058,[2] or driving on an improved shoulder. None of the 7 exceptions allowing [Appellant]’s vehicle to legally drive on an improved shoulder were present.
7. Other factors the Officer listed as reasons for the stop included the time of day, close proximity to bars in the area, direction of travel, repeatedly touching or crossing the line multiple times in a short period of time, and touching or crossing the solid line multiple times in a short 2 block distance. Officer [Eardley] claimed these factors indicated to him reasonable suspicion that a crime might have been in progress, specifically Driving While Intoxicated.
8. Due to the violations of the [T]ransportation [C]ode noted above, and the other factors listed, Officer Eardley performed a traffic stop and observed signs of intoxication.
....
Based on the above findings, the Court concludes that reasonable suspicion did exist for Officer Eardley to stop [Appellant’s] vehicle.
1 See Tex. Transp. Code Ann. § 545.060 (regulating movement between marked traffic lanes).
See id. § 545.058 (restricting driving on an improved shoulder). 2
3 After the trial court denied his suppression motion, Appellant pled guilty under
a plea agreement in which the State agreed to waive the information’s enhancement
paragraph. In accordance with the plea agreement, the trial court sentenced Appellant
to forty days’ confinement in jail and a $500 fine. Appellant now brings this appeal.
POINT ON APPEAL
In one point, Appellant argues that the trial court erred by denying his motion
to suppress because Officer Eardley lacked reasonable suspicion that Appellant either
violated the Texas Transportation Code or was driving while intoxicated.
STANDARD OF REVIEW
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to
a trial court’s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on evaluating credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor.
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.
2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
Stated another way, when reviewing the trial court’s ruling on a suppression
motion, we must view the evidence in the light most favorable to the ruling. Wiede v.
State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State v. Kelly, 204 S.W.3d 808,
818 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we
4 determine whether the evidence, when viewed in the light most favorable to the trial
court’s ruling, supports those findings. Kelly, 204 S.W.3d at 818–19. We then review
the trial court’s legal ruling de novo unless its explicit fact findings that are supported
by the record are also dispositive of that ruling. Id. at 818.
DISCUSSION
We begin with Appellant’s argument that Officer Eardley lacked reasonable
suspicion that Appellant violated Texas Transportation Code Section 545.058. Under
that statute, a vehicle operator “may drive on an improved shoulder to the right of the
main traveled portion of a roadway if that operation is necessary and may be done
safely,” but only for one of seven purposes listed in the statute, such as to allow a
faster-traveling vehicle to pass. Tex. Transp. Code Ann. § 545.058(a). Appellant
admits that none of the seven statutory reasons existed in this case. But he contends
that “his momentary, slight drift over the fog line”3 did not give rise to reasonable
suspicion that he drove on the improved shoulder.
I. The State Produced Evidence Supporting a Finding that Appellant’s Truck Crossed the Fog Line.
At the hearing on the motion to suppress, the State called Officer Eardley as its
only witness. Officer Eardley testified that on February 15, 2017, at around
3 Like the parties, we use the term “fog line” to refer to the solid white line marking the boundary of a lane—in this case, the right-hand lane—and the shoulder. See Reyna v. State, No. 03-16-00774-CR, 2017 WL 2926650, at *1 n.3 (Tex.
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-17-00408-CR ___________________________
CHASE DANIEL KILLION, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 1 Tarrant County, Texas Trial Court No. 1497685
Before Gabriel, Kerr, and Pittman, JJ. Memorandum Opinion by Justice Pittman MEMORANDUM OPINION
Appellant Chase Daniel Killion appeals from his conviction for driving while
intoxicated. In his sole point, Appellant argues that the trial court erred in denying his
motion to suppress. Because we hold that sufficient evidence supported the trial
court’s ruling, we affirm.
BACKGROUND
The State charged Appellant by information with driving while intoxicated with
a blood alcohol content of 0.15 or more. The information included an enhancement
paragraph alleging a prior misdemeanor conviction for deadly conduct. Appellant
filed a motion to suppress asserting that he had been arrested and detained without a
warrant and without probable cause that he had committed a traffic violation or that a
crime was in progress. The trial court denied the motion after a hearing.
The trial court made the following findings of fact and conclusions of law:
1. On 2/15/2017, Officer [Cleburn] Eardley of the Sansom Park Police Department was traveling on S[tate] Highway 199 in Sansom Park, TX when he saw a motor vehicle traveling on the same highway in the opposite direction. The officer made a u-turn and proceeded to catch up with the vehicle once they were traveling the same direction.
2. The driver of the motor vehicle was eventually identified as [Appellant].
3. Officer Eardley, a credible witness, testified, and the Court so finds, that as the officer traveled behind [Appellant]’s vehicle, [Appellant]’s vehicle veered off to the improved shoulder to the right of the highway 3 times.
2 4. Officer Eardley believed that [Appellant] did not drive entirely within a single lane and also that [Appellant]’s movement from his lane was not safe because he was traveling in close proximity to cars in front of him, and those drivers ahead of [Appellant] could become distracted due to [Appellant]’s repeated drifting to the right in a short period of time directly behind them.
5. Because [Appellant] did not drive entirely within a single lane, and it was unsafe to do so, the officer believed [Appellant] was in violation of Texas Transportation Code [Section] 545.060.[1]
6. The Officer also cited witnessing a second traffic code violation, namely Texas Transportation Code [Section] 545.058,[2] or driving on an improved shoulder. None of the 7 exceptions allowing [Appellant]’s vehicle to legally drive on an improved shoulder were present.
7. Other factors the Officer listed as reasons for the stop included the time of day, close proximity to bars in the area, direction of travel, repeatedly touching or crossing the line multiple times in a short period of time, and touching or crossing the solid line multiple times in a short 2 block distance. Officer [Eardley] claimed these factors indicated to him reasonable suspicion that a crime might have been in progress, specifically Driving While Intoxicated.
8. Due to the violations of the [T]ransportation [C]ode noted above, and the other factors listed, Officer Eardley performed a traffic stop and observed signs of intoxication.
....
Based on the above findings, the Court concludes that reasonable suspicion did exist for Officer Eardley to stop [Appellant’s] vehicle.
1 See Tex. Transp. Code Ann. § 545.060 (regulating movement between marked traffic lanes).
See id. § 545.058 (restricting driving on an improved shoulder). 2
3 After the trial court denied his suppression motion, Appellant pled guilty under
a plea agreement in which the State agreed to waive the information’s enhancement
paragraph. In accordance with the plea agreement, the trial court sentenced Appellant
to forty days’ confinement in jail and a $500 fine. Appellant now brings this appeal.
POINT ON APPEAL
In one point, Appellant argues that the trial court erred by denying his motion
to suppress because Officer Eardley lacked reasonable suspicion that Appellant either
violated the Texas Transportation Code or was driving while intoxicated.
STANDARD OF REVIEW
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to
a trial court’s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on evaluating credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor.
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.
2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
Stated another way, when reviewing the trial court’s ruling on a suppression
motion, we must view the evidence in the light most favorable to the ruling. Wiede v.
State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State v. Kelly, 204 S.W.3d 808,
818 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we
4 determine whether the evidence, when viewed in the light most favorable to the trial
court’s ruling, supports those findings. Kelly, 204 S.W.3d at 818–19. We then review
the trial court’s legal ruling de novo unless its explicit fact findings that are supported
by the record are also dispositive of that ruling. Id. at 818.
DISCUSSION
We begin with Appellant’s argument that Officer Eardley lacked reasonable
suspicion that Appellant violated Texas Transportation Code Section 545.058. Under
that statute, a vehicle operator “may drive on an improved shoulder to the right of the
main traveled portion of a roadway if that operation is necessary and may be done
safely,” but only for one of seven purposes listed in the statute, such as to allow a
faster-traveling vehicle to pass. Tex. Transp. Code Ann. § 545.058(a). Appellant
admits that none of the seven statutory reasons existed in this case. But he contends
that “his momentary, slight drift over the fog line”3 did not give rise to reasonable
suspicion that he drove on the improved shoulder.
I. The State Produced Evidence Supporting a Finding that Appellant’s Truck Crossed the Fog Line.
At the hearing on the motion to suppress, the State called Officer Eardley as its
only witness. Officer Eardley testified that on February 15, 2017, at around
3 Like the parties, we use the term “fog line” to refer to the solid white line marking the boundary of a lane—in this case, the right-hand lane—and the shoulder. See Reyna v. State, No. 03-16-00774-CR, 2017 WL 2926650, at *1 n.3 (Tex. App.— Austin July 6, 2017, no pet.) (mem. op., not designated for publication) (defining “fog line”).
5 10:50 p.m., he was driving on State Highway 199 in Tarrant County. Appellant was
driving a Dodge Ram in the opposite direction on State Highway 199. Officer
Eardley made a u-turn, which placed him behind Appellant. Officer Eardley testified
that he decided to stop Appellant after he saw Appellant’s truck veer three times onto
the improved right-hand shoulder, crossing the white fog line to do so. Officer
Eardley stated that crossing the fog line onto the improved shoulder violated the
Texas Transportation Code. Officer Eardley further testified that based on his
training and experience, given the time of day, Appellant’s travel direction and relative
closeness to nearby bars—about three blocks away—and Appellant’s crossing the fog
line three times in a short distance, he thought Appellant was possibly driving while
impaired.
The State played a video from Officer Eardley’s dash camera. In the video,
Appellant’s truck clearly moves to the right side of his lane three times. For the first
two rightward movements, his right tires appear to cross the fog line and move onto
the shoulder, but on the second instance, the video is dark and therefore unclear.
Because the trial court found Officer Eardley’s testimony credible, we must defer to
the trial court’s finding on those two instances. See Amador, 221 S.W.3d at 673.
For the third instance, Officer Eardley’s vehicle is closer to Appellant’s, and the
video is lighter and therefore clearer. The video shows Appellant’s right tires drive
onto the fog line. In the next moment, Appellant’s right tires begin to move across
the fog line onto the right shoulder, and Officer Eardley simultaneously turns on his
6 lights to stop Appellant. Thus, while Appellant did cross over the fog line a third
time, Officer Eardley did not witness his tires actually move onto the shoulder before
deciding to stop Appellant. Consequently, we do not accept his testimony that he
stopped Appellant after seeing Appellant’s right tires actually cross onto the shoulder a
third time. See State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013) (stating
that appellate courts may review de novo indisputable visual evidence contained in a
videotape).
However, we note that the evidence still supports the trial court’s most relevant
fact findings. While the trial court found that Appellant’s vehicle veered to the
improved right shoulder three times, it did not find reasonable suspicion based on
three instances; rather it found that Officer Eardley stopped Appellant based on,
among other factors, Appellant’s “touching or crossing the line multiple times” and
that Officer Eardley cited witnessing a violation of Section 545.058 as a basis for the
stop. [Emphasis added.]
II. The Evidence Supports Reasonable Suspicion.
At the suppression hearing, the State had to establish that Officer Eardley had
reasonable suspicion that Appellant violated the law, not that Appellant actually did.
See Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015) (“The question in
this case is not whether [the] appellant was guilty of the traffic offense but whether
the trooper had a reasonable suspicion that she was.”). The record supports
reasonable suspicion that Appellant drove on the improved right shoulder in violation
7 of Section 545.048(a). Even if we disregard Appellant’s third instance of crossing the
right fog line, the State’s evidence supported a finding that Appellant’s right tires fully
crossed the line twice, as Appellant acknowledges. The State produced evidence,
which the trial court found credible, that Appellant’s right tires crossed onto the right
shoulder on two occasions in less than twenty seconds. While briefly touching the
fog line one time does not necessarily support reasonable suspicion of a violation of
Section 545.058, State v. Cortez, 543 S.W.3d 198, 206 (Tex. Crim. App. 2018),
Appellant’s driving did. See Tyler v. State, 161 S.W.3d 745, 750 (Tex. App.—Fort
Worth 2005, no pet.) (holding that officer’s seeing the appellant’s right tires crossing
fog line and straddling it for a few moments was sufficient to give the officer
reasonable suspicion that the appellant violated Section 545.058); see also Stegal v. State,
No. 05-16-00098-CR, 2017 WL 1536516, at *4 (Tex. App.—Dallas Apr. 26, 2017, no
pet.) (mem. op., not designated for publication) (concluding that the deputy had
objective facts and rational inferences from those facts to support a reasonable
suspicion of a violation of Section 545.058(a) when the appellant’s right tires crossed
the fog line for a few seconds at least twice); State v. Hanath, No. 01-08-00452-CR,
2010 WL 3833919, at *1, *4 n.4 (Tex. App.—Houston [1st Dist.] Sept. 30, 2010, no
pet.) (mem. op., not designated for publication) (holding officer had reasonable
suspicion to believe the appellee violated Section 545.058 after witnessing the
appellee’s two right tires briefly drift across the white fog line and onto the improved
shoulder as the appellee rounded a curve in the road and stating that “the fact that the
8 two right tires on [the] appellee’s truck were only on the shoulder for mere seconds
does not affect the application of [S]ection 545.058(a)”); State v. Wise, No. 04-04-
00695-CR, 2005 WL 2952357, at *3 (Tex. App.—San Antonio Oct. 26, 2005, no pet.)
(mem. op., not designated for publication) (reversing trial court’s grant of motion to
suppress where officer testified that he saw the appellant veer onto the road’s
shoulder with both right tires and then correct her vehicle back into her lane).
Appellant asserts that the cases holding that a driver’s tires crossing over the
fog line gives rise to reasonable suspicion of a violation of Section 545.048(a) are
distinguishable or should not be followed. However, we consider the cases we have
cited to be analogous and persuasive. We overrule this part of Appellant’s point.
Because the evidence regarding Appellant’s Section 545.048(a) violations,
viewed in the light most favorable to the trial court’s ruling, supports the denial of the
motion to suppress, we do not address Appellant’s arguments that Officer Eardley
lacked reasonable suspicion that Appellant violated Transportation Code Section
545.060 or that he was driving while intoxicated.
CONCLUSION
Having overruled the dispositive part of Appellant’s sole point, we affirm the
trial court’s denial of Appellant’s motion to suppress.
9 /s/ Mark T. Pittman Mark T. Pittman Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: January 31, 2019