*1 royalty,” a “fraction of we over- vided for Range’s
rule three issues and affirm the summary partial judgment trial court’s favor of Bradshaw.
CAYCE, a dissenting opinion. filed C.J. CAYCE, Justice, JOHN Chief dissenting.
I dissent. As a matter of respectfully law, the two 1960 deeds issue reserved non-participating
fixed fractional l/16th royalty appellee’s interest. The contention contrary requires ignore us to nu- construction, contract
merous rules of give “being equal to” lan- no effect deeds, imply in the and to from the guage phrase in the a res- “not less than” deeds in favor grantor of interest of the ervation plain language than the is more would, therefore, grant I deeds allows. appellants’ rehearing, motions for reverse judg- partial summary court’s trial ment, judgment appellee and render appel- her claims nothing against
take on lants. FOWLER, Avery Appellant,
Chad Texas, The STATE State. 2-06-183-CR. No. Texas, Appeals Court Fort Worth. Aug.
Background 23, 2005, July
On a little after midnight, Officer Patrick Knotts of the Mansfield Department driving directly Police be- Appellant’s hind truck on pick-up Debbie Lane, a four-lane road by a medi- an. Officer Knotts testified that he ob- adjacent served the truck cross into an same-direction lane a tire’s width and truck drifted within its lane two times, more touching the white line be- tween the lanes. immediately
Officer Knotts initiated a stop, Appellant and pulled into a private driveway. According to Officer Knotts, when he asked Appellant for his information, license and insurance Appel- disoriented, lant acted strange, seemed and through fumbled his camera bag be- fore pulling his wallet from his shorts pocket. Officer Knotts also noticed that Appellant’s eyes red, glassy, were Jeff Kennedy, C. Kennedy Kennedy, & Appellant bloodshot. had a hard time con- TX, Arlington, Appellant. for centrating properly respond and did not Tim Curry, Criminal District Attorney, Officer Knotts’s questioning. Appellant Mallín, Chief, Charles M. Appellate Divi- told Officer Knotts that he had consumed sion, Conder, Nickols, Steven W. Nicole one Keystone twelve-ounce beer about Jeff Hampton, Assistant District Attor- prior However, hour Officer neys Worth, for Tarrant County, TX, Fort open Knotts found an Key- twelve-ounce Appellee. stone passenger beer the front seat of truck, and the can was cold to
the touch. Appellant Officer Knotts asked to per- OPINION form some sobriety field tests. On the GARDNER, ANNE Justice. test, gaze nystagmus horizontal pursuit Knotts observed a lack of smooth question in this DWI case is wheth- eyes in both nystag- and four out of the six police er a officer has cause or Appellant mus clues. then failed to main- for a traffic stop tain the mandated stance in the walk-and- when the officer observes the tires turn test. He stated that he could not defendant’s vehicle adjacent cross into an perform same-direction lane the test because he was tired and by a tire’s width single time when refused to sobriety there is no other traffic continue the field tests in the area. all together. Appellant We answer “no” and reverse also refused to the trial judgment. court’s take a breath test. Officer Knotts arrest- Therefore, give Appellant
ed for DWI due the loss almost total deference physical questions use of his mental and faculties. to the trial court’s rulings on fact, even if the trial historical court’s suppress Appellant sought all evi- *3 of those facts was not determination based stop. from dence the traffic The trial of credibility on evaluation and demean- hearing court held a on his motion to or, ques application-of-law-to-fact and jury after but suppress selection before tions that turn on an evaluation of credibil At presentation con- the of evidence. the State, ity and demeanor. Montanez v. 195 the the trial hearing, clusion of court de- 101, (Tex.Crim.App.2006); S.W.3d 108-09 suppress. to A nied motion State, 644, v. 68 652-53 Johnson S.W.3d of jury Appellant convicted DWI and sen- Ballman, (Tex.Crim.App.2002); v. State days’ him to twenty-five tenced confine- 65, (Tex.App.-Fort 157 68 Worth S.W.3d and a of appeal ment fine This $650. ref'd). 2004, pet. But when the trial followed. rulings court’s do not turn on the credibili Discussion witnesses, ty of we and demeanor the re rulings trial view de novo a court’s on argues In the points, Appellant two that mixed of law and fact. questions Estrada denying his to trial court erred in motion (Tex.Crim. State, 604, v. 154 S.W.3d 607 Knotts suppress because Officer had no Johnson, App.2005); 652-53. cause to probable or facts in case are historical this not stop. justify the initial traffic The State therefore, disputed; ruling the we review argues that Knotts had Officer suppress on to de novo. See the motion had Appellant violated sec- (Tex. State, 103, 106 Oles v. Transportation tion the Texas Crim.App.1999). Code.1 1. of Review Standard Testimony Hearing Suppression Generally, trial we review a court’s rul Knotts was wit- Officer the State’s a motion ing suppress on evidence un He suppression hearing. ness at the testi- a bifurcated der standard review. Car fied, part, relevant follows: State:, 323, (Tex. v. mouche 327 a.m., Q. And 12:25 did Okay. around State, v. Crim.App.2000); Guzman 955 the you anything out of ordi- observe 85, (Tex.Crim.App.1997). 89 In re S.W.2d nary? decision, viewing the trial do not court’s A. commit-a I observed white vehicle engage our factual review. Rome own violation, a traffic white truck commit (Tex.Crim. v. 800 543 ro S.W.2d my and attention. caught it App.1990); Best v. Q. Okay. And what was (Tex.App.-Fort no pet.). Worth violation? trier judge The trial is the sole of fact and single lane A. to drive in a Failed credibility judge of witnesses traffic. weight testimony. their given to be Ross, (Tex. you Q. describe Okay. Could State Ballard, failed exactly how vehicle Crim.App.2000); Judge traffic? maintain a lane of (Tex.Crim.App.1999). appeal, argue not 1. On the State does Knotts had cause for
A. Q. Okay. you Sure. The vehicle was observed Could tell the Court the traveling eastbound on Debbie Lane. It Code definition of “fail- ure to line, maintain lane”? approximately crossed the white width, tire’s and then it drifted over and IfA. vehicles do not—the vehicle has traffic; then, touched the white line two more times. to travel within the lane of lanes, if going change it’s it needs to signal lane-change. sig- He never Q. you And also testified the sole rea- any naled lane-change, so that would be why you son stopped that vehicle was what I based the traffic stop off of. for failure to maintain a single lane of *4 Q. your And that’s understanding of traffic. Code definition? A. That’s correct. A. maintain single Failure to lane of Q. You you also testified that observed operating while a motor vehicle. the vehicle cross over the white line one Q. Okay. any Did the vehicle commit time, approximately a tire’s width— other traffic violations other than cross- A. Correct. ing that line one time? A. No.
Q. —and then drift within its lane two Q. you Did any observe incident that other times— causing came close to an accident or was A. And touch the white line. unsafe, manner, in any in that regard? Q. —and touch Okay. the white line. A. No. Officer Knotts also testified that there was Q. you Do recall what block number not a adjacent vehicle in the lane when was, approximately? Appellant’s tires crossed the line and that A. The violation was in the 100 block. his vehicle did not strike the curb when it
crossed the line. Q. Suspicion And 3. Reasonable you where did effectuate the traffic stop? In point, his second ar Appellant A. gues The vehicle that Officer stopped illegally in the 200 Knotts seized block Debbie, by stopping him him East without reasonable Debbie. was, been, suspicion that he had or soon Q. approximately So peri- one-block engaged would in criminal activity. be We od? will point consider this first if because A. Correct. unjustified stop was cion, unjustified then it was also under the Q. nothing So dangerous about stringent more standard of cause. moving over line? (Tex. State, See Klare v. 'd). App.-Houston pet. [14th Dist.] ref struck, so, A. No vehicles were almost no. The Fourth Amendment2 pro against
tects
unreasonable searches and
Where,
case,
State,
appellant
as in this
has not
constitution. Varnes
separately
(Tex.App.-Houston
briefed state and federal constitu
[14th Dist.]
claims,
Therefore,
appellant
tional
pet.).
analyze Appellant’s
assume that the
we will
greater protection
solely
claims no
under the state
claim
under the Fourth Amendment of
Constitution,
provided by
constitution than
following
the federal
the United States
Const,
stop
objective
sup
To
whether
basis
amend. IV.
U.S.
seizures.
at 492.
exists. Id.
alleged
of an
evidence because
press
violation, the defen
Amendment
Fourth
545.060(a) of
the Texas
a. Section
producing
the initial burden of
dant bears
Transportation Code
presumption
that rebuts the
evidence
stopped
that he
Knotts testified
State,
Torres v.
proper police conduct.
Appellant
because he observed
Appellant
(Tex.Crim.App.2005);
maintain a
lane of traffic.
failing to
(Tex.
488, 492
Ford v.
provision
transporta-
The relevant
A defendant
satisfies
Crim.App.2005).
as
545.060(a)-provides
tion code—section
by establishing that a search
this burden
follows:
without a warrant.
or seizure occurred
(a)
roadway
on a
operator
An
Ford,
Torres,
902;
at
clearly marked
two or more
into
has
the defendant
492. Once
traffic:
lanes for
showing,
proof
the burden
made this
practical
shall drive as
must then estab
which
shifts
lane;
entirely within
conducted
agent
government
lish
*5
the lane un-
may not move from
pursuant
to war
the search or seizure
can be made
movement
less that
reasonably.
agent acted
rant or that
safely.
Ford,
902;
Torres,
158
at
(Ver-
Transp.
§
Ann.
Tex.
Code
at 492.
S.W.3d
added).
1999) (emphasis
non
that a de-
Court has held
Supreme
subparts,
has two
Although the statute
Fourth
under the
tention is reasonable
offenses,
separate
two
it does not create
agent rea-
government
if the
Amendment
of a
moving out
rather
one:
but
in
engaging
sonably suspects
person
to do so.
it is not safe
marked lane when
Ohio,
Terry v.
392 U.S.
activity.
criminal
867,
871
v.
Hernandez
1868, 1880,
1, 22,
503 to create a discrete apart per offense from defendant drove thirteen hour miles unsafety. some element of This conclu- limit speed fog under and crossed over line sion is bolstered the use of the term driving once before one mile with no fur “practical” rather than “practicable.” infractions); Cerny, ther State v. 28 The latter term has a somewhat more (Tex.App.-Corpus S.W.3d 798 Christi definite meaning: “capable being ac- 2000, pet.) no (holding no reasonable feasible; complished; possible,” while cion “just barely” existed when car the former term ambiguous: is more oncoming swerved into shoulder of lane of in practice; “manifested capable of be- traffic, then fog swerved over inside line put Garner, ing good Bryan use.” A. times); Arriaga, three to four State v. A Dictionary Legal Usage Modem (Tex.App.-San S.W.3d Antonio (2d ed.1995). ref'd) 1999, pet. (holding no reasonable Id. suspicion existed when van drifted toward center divider-but within lane-two to
Thus,
seven
the Hernandez court
that a
held
nightclub
a.m.);
times near
around 1:50
vehicle’s slow drift until two of its tires
Tarvin,
(Tex.
State v.
lane,
crossed into another
same-direction
ref'd)
App.-Waco
at an
pet.
(holding
hour when there
were few other cars
about,
give
did not
rise to a
existed when car
suspicion of criminal activity because the
drifted
fog
over outside
line two to three
presented
no evidence that the driv
nightclub).
times at 2:00 a.m. near
er’s failure to drive in
lane was
contrast,
By
in those cases where courts
dangerous.
869-70,
unsafe or
Id. at
*6
have held that a driver’s failure to main
Many other courts have reached the same
single
tain a
lane
a
triggered
reasonable
See,
conclusion under similar
e.g.,
facts.
suspicion that the driver had violated sec
Huddleston,
State v.
711,
164 S.W.3d
713-
545.060,
tion
single
failure to drive in a
2005,
14 (Tex.App.-Austin
pet.)
no
(holding
lane
coupled
with some other factor
officer lacked
suspicion
reasonable
of viola
that
danger
safety,
indicated
or a lack of
tion of section 545.060 when he
car
saw
bar,
such as the
leaving
driving
driver’s
a
slowly
fog
drift over
line
a few inches
traffic,
in heavy
crossing
into
lane of
five times over five to six miles while
traffic,
oncoming
or weaving over an ex
traveling
eight
one to
per
miles
hour under
See,
tended distance or
e.g., Tyler
time.
v.
limit);
speed
State,
Eichler v.
117 S.W.3d
State,
745,
161
(Tex.App.-Fort
S.W.3d
746
897,
(Tex.App.-Houston
898
[14th Dist.]
2005,
pet.)
Worth
no
(holding reasonable
2003, no pet.) (holding
suspi
no reasonable
suspicion
police
existed when
stopped driv
cion when car crossed line between middle
anonymous tip
er after
of
driving
erratic
and fast lanes once
highway
on interstate
weaving
heavy
in
traffic on Thanksgiv
in light
a.m.);
State,
traffic at 12:30
Bass v.
weekend);
State,
ing
Cook v.
63 S.W.3d
646,
64 S.W.3d
649-50 (Tex.App.-Texar
924,
(Tex.App.-Houston
926-27
[14th Dist.]
2001,
ref'd)
pet.
kana
(holding no reason
refd)
2002, pet.
(holding
reasonable
suspicion
able
existed when car swerved
cion existed when car sped out of bar
within and outside its lane over two and
lot,
parking
suspiciously pulled
gas
into
one-half to three
passed by
miles and was
seconds,
vehicles);
State,
station for ten to fifteen
then
other
Corbin v.
90,
drove “all over” two unmarked roads be
(Tex.App.-Texarkana 2000),
94
rev’d on
(Tex.Crim.
grounds,
“constantly” crossing
other
fore
into other lane
820, lant. The State relies on pet. (Tex.App.-Texarkana 821 ref'd) court, proposition (holding suspicion reasonable existed from this for some when, receiving tip prove informant required after that the is not heroin, officer carrying only would be defendant violated a traffic law but defendant line into yellow car cross testimony saw defendant’s that the officer to elicit needs traffic); Martinez v. oncoming lane of that a defendant vio reasonably suspected State, 609, (Tex.App.-Hous McQuarters a traffic law. See lated ref'd) 2000, (holding pet. State, 250, [1st Dist.] ton (Tex.App.-Fort when car suspicion reasonable existed ref'd); 2001, also Garcia v. pet. see Worth for a few sec drifted onto shoulder (Tex.Crim.App. traffic); onds, busy freeway during but on Bell, 11 Safety v. Dep’t Tex. Pub. of “un- his Officer Knotts testified (Tex.App.-San Antonio 282-83 S.W.3d code, a derstanding” transportation pet.) (holding no fail- merely by driver commits an offense into existed when car crossed shoulder traffic and lane of ing to maintain traffic); oncoming Gajewski lane of lanes, change he that if a driver intends (Tex.App. There change.4 lane signal needs to (holding pet.) Dist.] Houston [14th “changed that Appellant is no evidence when on two- existed lanes; thus, change lanes” or intended into of car crossed highway, lane one-third signal his turn could his failure to activate times). oncoming lane two to three suspicion for the provide not a reasonable case, In this there is no evidence Knotts’s “under- stop. That leaves Officer in a lane Appellant’s failure to drive a violation standing” of what constitutes articulated specific facts was unsafe. ba- only possible Appel- that two of by Officer Knotts show foregoing analysis As our sis adjacent same- tires drifted into lant’s shows, law the statute and case by no more lane one time and direction wrong. understanding was Knotts’s no other than a tire’s width. There was *7 in lane to and Appellant, vehicle the next suspicion of An reasonable officer’s the expressly Knotts stated Officer cannot be based alleged traffic violation an of truck was not movement understanding of aon mistaken Absent from Officer dangerous. unsafe or Granado, 302 F.3d laws. States United any of the factors testimony Knott’s are (5th Cir.2002); Goudeau where in the cases cited above present (Tex.App.-Houston suspicion courts found a an offi And pet.). [14th Dist.] 545.060,such as driver had violated section understanding of mistaken cer’s honest but line into crossing a driver’s the center stop is prompted traffic law which the oncoming traffic. exception to the not Goudeau, 209 S.W.3d requirement. cion Officer argues The State because Thus, Knotts’s misunder at 716. Officer Appellant had com Knotts believed that 545.060(a) requires standing that section an act that Knotts believed mitted regardless code, only crossing of the lane by transportation the prohibited was line— do dangerous to it is unsafe or stop Appel of whether suspicion he had reasonable lanes, 545.104(a)(Ver- parked posi- change or start from § 4. See Tex. Transp. Code Ann. ("An 1999) tion.”). the operator [turn] shall use non turn, signal ... an intention to to indicate support suspi- so—will not a reasonable ment and remand this case to the trial cion. proceedings. court for further
McQuarters and the
by
other cases cited
McCOY,
change
concurring opinion.
the State do not
this
J. filed a
result.
McQuarters cites
proposi-
Garcia for the
McCOY, Justice, concurring.
BOB
tion that “the State
not required
prove appellant violated a traffic law. The
agree
by
I
with the result reached
the
testimony
needed to elicit
majority
agree
this case but do not
with
police
knew
[the
officer]
sufficient facts to
aspect
one
their reasoning.
As recount-
reasonably suspect that appellant had vio-
545.060(a)
by
majority,
ed
the
section
lated a traffic law.”
Conclusion Nevertheless, reluctantly I Having agree sustained both of (a) points, judg- we reverse the trial court’s con- of the Code (Courier 1. See Poems Jabberwocky Dover Publications Carroll, Lewis and Other offense, one enumerated as sub- tains but (2), and that the tsunami
sections some requiring case law other endan- factor, gering besides failure to drive lane, be violation statute, Hence, I in the is correct. concur majority. as determined
outcome al, Appellants, et Dale RANKIN ENERGY, al, Appellees. FPL LLC et
No. 11-07-00074-CV. Texas, Appeals Court of Eastland. Aug.