### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00491- CR
The State of Texas, App ellant

v. Ke vin Rothrock, Appellee

F ROM CO UNTY COURT AT LAW NO . 8 O F TRAVIS CO UNTY , NO. C-1 -CR- 08- 2166 07 HO NORAB LE CARLOS HUM B ERTO B ARRERA, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
The State appea ls the trial court’s order g ranting appellee Kevin Rothrock’s motion to suppress evidenc e obtained pursuant to a traff ic stop. The State arg

ues that there was rea sonable
s u s p i cion to justify the stop based on evidenc e of possible intox ication and evidenc e of a traff ic violation. We affirm the tria l court’s orde r.

On J uly 17, 2009, Depa

rtment of Public Safety Trooper J ason No rt on initiated a traff ic stop of a truc k driven by Rothrock. Norton testified that his suspi cions wer e ar oused whe n he observe d Rothrock leaving a bar at 2:30 a.m., acc ompanied by a larg e cloud of dust. Norton, who had been driving on the opposite side of a divided highw ay , turned aro u n d an d beg an pursuing R o t h ro ck’s vehicle. When Norton caug ht up to Rothrock, he testified that he observe d Rot h ro ck
weave withi n hi s l an e an d b ri efly cross over t he left fog line onto the i mproved shoulder. At thispoint, Norton testified, he had rea sonable suspicion both that Rothrock was intox icated and that

Rothrock had c ommitt ed a tr aff ic violation. Rothrock was char g ed by information for driving while intox icated. See Tex. Penal Code Ann. § 49.04(a) (West 2003). Rothrock filed a pretria l motion to suppress, arguing that Norton had no re asonable suspicion to initiate the traff ic stop. The trial court g rante d Rothrock’s motion, and the State a

ppeals. We revie w a trial court’s ruling on a motion to suppress under a bifurcated standard of revie w. Carmouche v. State , 10 S. W
. 3 d 3 2 3 , 327 (Tex. Crim. App. 2000); see also Guzman

v. State , 955 S.W .2d 85, 89 (Tex. C ri m . Ap p . 1 9 9 7). The trial court’s finding s of fac t are g iven “almost total defe renc e.” Carmouche , 10 S.W .3d at 327-28; Guzman , 955 S.W .2d at 89-90. The trial court’s denial of a motion to suppress is revie wed for ab u s e of discretion, Oles v. State , 993 S.W .2d 103, 106 (Tex. Crim. App. 1999), but w hen the trial court’s ruling s do not tur n on the
cre dibilit y and demea

nor of the witnesses, we apply a de novo standard of revie w, Estrada v. State , 154 S.W .3d 604, 607 (Tex. Crim. App. 2005).

A police office r m ay stop and briefly detain a person for investigative purposes if the office r has rea sonable suspicion supported by articula ble fac ts that criminal activity may be a f o o t. W oods v. State , 956 S.W .2d 33 , 3 8 (Tex. Crim. App. 1997); Hernande z v. State , 983 S.W .2d 867, 869 (Tex. App.—Austin 1998, pet. ref ’d). The rea sonablene ss of a temporar y detention must be examined in terms of the totality of the c ircumstance s. W oods , 956 S.W .2d at 38. A deta ining office r must have specific , articula ble fac ts that, taken toge ther with rational infere nces from

2those fac ts, lead him to conclude that the person detained i s , has been, or soon will be enga g ed in

criminal ac tivity
. Id.

The first of the State’s two th eo ri es is that the traff ic stop was justified based
on rea sonable suspicion that Rothrock was intox icated. Trooper No rt o n , who routinely patrolled the are a, testified that he observe d Rothrock’s truck leaving a bar around 2:30 a.m. The fac t that the truck raised a larg e cloud of dust when leaving raised a red flag in Norton’s mind, sugges t i ng something unusual—that, for example, there may have been a fig ht. When Norton was able to turn around to investiga

te, the truck was g one. About five minutes later, Norton caug ht up to the truck. Norton testified that he observe d the truck w eavingin its l ane.

The fac ts here are s i m i lar to the fac ts in State v. Guzman , 240 S.W .3d 362 (Tex. A pp.—Austin 2007, pet. re f’d) , and in Foster v. State , 297 S.W .3d 386 (Tex. A pp.—Austin 2009, pet. g rante d). I n Guzman , we held that an office r’s observing a vehicle spinning its tires at a downt o wn l o ca t ion at night did not cre ate rea sonable suspicion of driving while intox icated. 240 S.W .3d at 367-68. In Foster , we held that a driver’ s lurching his vehicle in simil ar circumstanc es, l ikewise, did not cre ate reasona ble s uspicion of driving whil e int ox icated
. 297 S.W .3d at 393-94.

Her e, the only evidenc e—beyond unsubst antiated suspicions—that Rothrock was intox icated w as his pulling out of a bar parking lot quickly and late at night. While, unlike in Guzman and Foster , the offic er he re a lso testified that he observe d Rothrock’s vehicle weaving in its lane, the trial court chose not to cre dit this testimony as sufficie nt evidenc e to cre ate rea sonable suspicion of i ntox ication. Where, a s here , the trial cour t’s ruling turned e ntirely

on the credibility

3and demea nor of Norto n , t h e s o le witness, we aff ord almost total defe renc e to the trial court’s finding s. See Carmouche , 10 S
. W
. 3 d at 327-28; Guzman , 955 S.W .2d at 89-90. Be y ond the evidenc e of the time and place of the events and of the manner by which Rothrock exit ed the parking lot—evidence that we have previously held to be insufficient t o cr ea te rea sonable suspicion of intox ication, see Foste r , 29 S.W .3d at 294; Guzman , 240 S.W .3d at 368—t he only evidenc e of intox ication is Trooper

Norton’s testimony

that he obser

ved Rothrock’ s truck we aving in its l ane. The State cites Arriaga v. State , No. 03-03-00097- CR, 2003 Tex. App. L EXI S 7445 (Tex. A pp.—Austin Aug . 29, 2003, no pet.) (mem. op., not desig nated for publication), as support for its position that Norton’s observations wer e sufficie nt to cre ate rea sonabl e s u s p icion of intox ication. Th e office r in Arriaga observe d the defe ndant wea ving within his lane and briefly crossing the fog line. Id

. at * 2
. However, in Arriaga , besides noting additional fac ts on which
a finding of probable cause could be based, we aff irmed the trial court’s motion to suppress ruling in fav o r o f t h e S t at e and ag ainst the defe ndant. Id. at *1, *9-10. There , it was the defe ndant’s burden to sho w t hat the trial court had abused its discretion. Her e, the trial court ruled in favor of Rothrock, g ranting Rothrock’s motion to suppress, and it is the State’s burden to show an abuse of discretion. Ba sed on our standard of revie w, which require s us to defe r to the trial court on issues of witness cre dibilit y , we cannot conclude that the trial court abused its discretion in deter mining that Trooper Norton did not have rea sonable suspicion that Rothrock was intox icated. Acc ording ly , we
overr ule the State’s f

irst issue. The State als o argues that that Norton was justified in detaining Rothrock based
o n reasonable suspicion that a traff ic offe nse had occur

red. See Armitage v. State , 6 3 7 S
. W
. 2 d

4936, 939 (Tex. Crim. App. 1982). Acc ording to the State, enhanc ed v i d eo ev i d ence shows that

Trooper Norton had rea sonable suspicion that Rothrock had committed a traff ic violation by driving on the improved shoulder
. See Tex. Transp. Code Ann. § 545.058(b) (West 1999).

An office r may leg ally initiate a detention if he has a rea sonable basis for suspecting that a person has committed a traff ic offe nse. See Garcia v. State , 827 S.W .2d 937, 944 (Tex. Crim. App. 1992). A traff

ic stop will be deeme d valid as long as a rea sonable office r in the same circ umsta n ce s co u l d have stopped the car for the suspected offe nse. W hren v. United States , 5 1 7 U.S
. 806, 808 (1996). There is, howeve r, no require ment that an actua l traff ic offe n s e b e committed, just that the office r rea sonably believed that a violation was in prog ress. Davy v. State , 67 S.W .3d 3 8 2 , 393 (Tex. App.—Waco 2001, no pet.); Gajewski v. State , 944 S.W .2d 450, 452 (Tex. App.—Houston [14t h Dist.] 1997, no pet.).

Her e, the parties do not dispute that driving on the improved s h o u l d er, absent
an ap p ro v ed purpose, is a traff ic violation. See Tex. Transp. Code Ann. § 545.058(b). Rather, the parties dispute whether Rothrock actua lly crosse d onto the improved shoulder. Trooper Norton testified that he observe d Rothrock cross over the left fog line and drive on the improved shoulder for sever al seconds as Rothrock enter ed the on-ramp to Hi g hway 130. The State also submitt ed video evidenc e which, it contends, co rr o b orate s Norton’s testimony
. A revie w of the video, howeve r—eve n the “enha nced video”—make s resolution of this fac tual dispute far fr o m c lear
. Even
on the enhanc ed version of the video, it is impossibl e to deter mine with cer

tainty whether the wh eels of R othrock’s vehicle actually crosse d the l eft fog line or not
. Ba sed on this i n co n cl u s i v e

5video evidenc e, the trial court, as sole fac t-finder , could have rea sonably conclude d that there was no traff ic violation. See A mador v. State , 275 S.W .3d 872, 878 (Tex. Crim. App. 2009). Be y ond the inconclusive video evidenc e, the only evidenc e that Rothrock committed
a traff ic violation is Norton’s testimony that he observe d Rothrock’s vehicle cross the left fog line. As noted, our s t an d ar d of revie w require s that we defe r to the trial court on issues of witness
cre dibilit y . Carmouche , 10 S.W .3d at 327-28; Guzman , 955 S.W .2d at 89-90. On this re cord, w e cannot conclude that the trial court abused its discretion in deter mining that Trooper Norton did not have r easona

ble suspicion that Rothrock had c ommitt ed a tr aff ic violation. See O les , 993 S.W .2d at 106. Acc ording ly , we ove rrule the State’s sec ond issue.

Having overr

uled the State’s issues, we aff irm the trial court order g ranting Rothrock’s motion to suppress.

__________________________________________ G. Alan Waldrop, Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: August 5, 2010 Do Not Publish

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