Ehrhart v. State

9 S.W.3d 929, 2000 WL 192536

• Court: Court of Appeals of Texas
• Decided: March 9, 2000
• Docket: 09-99-462CR
• Status: Published

Opinions

OPINION

BURGESS, Justice.

Rory Ehrhart pleaded guilty to third degree felony possession of a controlled substance. The trial court sentenced Ehr-hart to three years’ confinement in the Texas Department of Criminal Justice — • Institutional Division. Ehrhart appeals, claiming the trial court erred in denying his motion to suppress. See Tex. R. App. P. 25.2(b)(3)(B).

Ehrhart argues the initial stop of his car was unlawful. Officer Holley testified he stopped Ehrhart for failing to maintain a single marked lane. According to Officer Holley, Ehrhart’s car touched the solid white line on the right-hand side and crossed the white fine on the left-hand side. Officer Saucier testified he observed Ehrhart’s vehicle touch the solid white line twice, but only on the right-hand side. It is Ehrhart’s contention that failure to maintain a single marked lane is not a traffic offense unless it done in an unsafe manner. Because there is no evidence Ehrhart’s driving endangered other cars, he contends, the State did not establish a traffic violation occurred justifying the stop.

The State argues the stop was justified under the “community caretaking” exception recognized by this court in Cunningham v. State, 966 S.W.2d 811 (Tex.App.— Beaumont 1998, no pet.)(holding that “when a police officer has a demonstrable reason to believe that a particular individual may need assistance, a temporary stop is justified for the limited purpose of determining if assistance is appropriate”). However, in the present case there is no evidence that Officer Holley believed, reasonably or otherwise, that Ehrhart needed assistance. Officer Holley testified he stopped the vehicle only for the traffic violation of failing to maintain a single lane of traffic. No other explanation was given for the stop except for the testimony of Officer Saucier that they “didn’t recognize the vehicle” as “being a local vehicle,” and “not from around here.”

The State cites Davis v. State, 923 S.W.2d 781, 788 (Tex.App.—Beaumont 1996), for the proposition that failure to maintain a single lane gives rise to reasonable suspicion that the driver is intoxicated. We first note the State erroneously cites Davis as having no subsequent petition history but Davis was reversed by the Texas Court of Criminal Appeals. Davis v. State, 947 S.W.2d 240 (Tex.Crim.App.1997). Davis is unlike the present case. The Court of Criminal Appeals did not consider the issue of the reasonableness of the stop as it was not contested by the parties. Id. at 245. Furthermore, the court noted the defendant was stopped for suspicion of driving while intoxicated. Id. Likewise, this court in its original opinion noted the officers testified the defendant’s weaving within the lane caused them to believe he was driving while intoxicated or simply tired. Davis, 923 S.W.2d at 788. Here, there is no testimony by either officer that they suspected Ehrhart was intoxicated.

The State concedes in its brief that Ehr-hart’s failure to maintain a single lane is “not an inherently illegal act.” Neither Officer Holley nor Officer Saucier testified that Ehrhart’s “weaving” was unsafe or dangerous. As the record contains no evidence the movement was unsafe or dangerous, an actual traffic violation did not occur. See Hernandez v. State, 983 S.W.2d 867, 870 (Tex.App.—Austin 1998, pet. ref'd); see also Atkinson v. State, 848 S.W.2d 813, 815 (Tex.App.—Houston [14th Dist.] 1993, pet. ref'd) (one element of failure to drive in a single marked lane is that the driver moves without first ascertaining it can be made with safety). Thus, there was no basis for the stop. See Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992) (holding that “[a]s long as an actual violation occurs, law enforcement officials are free to enforce the laws and detain a person for that violation”). As the consent to the search is a fruit of the illegal stop, the evidence obtained in the search should have been suppressed. See Viveros v. State, 828 S.W.2d 2, 4 (Tex.Crim.App.1992). Accordingly, the trial court abused its discretion in denying Ehr-hart’s motion to suppress. Ehrhart’s sole issue is sustained. The judgment of the trial court is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.