### 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. 03-14-00021- CR

Donald Weston King, App ellant

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F H AY S CO UNTY NO. 101 401, H ONO RAB LE ROB ERT UP DEGROVE, J UDGE P RESIDING

D I S S E N T I N G O P I N I O N

Be cause I believe that the police office r who arr ested appellant lacke d rea sonable suspicion for the initial traff ic stop, I would reve rse the judgme nt of convict i o n an d re mand

t h i s ca se to the trial court. Acc ording ly , I respe ctfully dissent from the majority ’s aff irmance o f the conviction.
At the suppression hear ing, the trial court hear d t es t i m o n y from a single witness, Corporal Tommy Villanueva of the San Marc os Police Depa rtment. The only issue befor e the court

was whether t h e o ffice r had rea sonable suspicion to make the initial traff ic stop. Whil e working patrol on the m i d night shift, Villanueva said that he observe d appellant failing to maintain his vehicle in a single lane, but he could not rec all the number of times that occur red. He was not asked whether any other vehicles wer e in the are a. There was also no evidence o r t es timony about the

ex t en t o f any deviation from the lane of trave l or whether appellant had crosse d the cente r o rshoulder lines. Villanueva observe d appellant make a rig ht hand turn at an intersec tio n an d then

“immediately ” make a u-tu rn an d then another turn in order to return to his orig inal route. Villanueva did not rec all whether any other vehicles wer e in the are a or whether appellant had used

a turn signa l, but he stated that he did not note in the offe nse repor t that the driver had failed to signa l a lane chang e. Shortly afte r appellant had resumed trave l on his orig inal route, Villanueva initiated

a traff ic stop. Although the stop ultimately resulted in appellant’ s arr est fo r DWI , Villanueva testified that the only rea sons for the stop wer e that appellant failed to maintain a single lane and had made an “illeg al” u-turn. Villanueva was not asked, nor did he offe r any testimony , about whether appellant’ s vehicle was being driven in an unsafe manner or whether he suspected that the driver of the vehicle was intox icated. There was also no testimony about the road conditions, visibil ity , or any other matter rela ted to whether appellant was driving unsafe ly or rec klessly , including his speed of

trave l and wea ther conditions. Villanueva was not questioned about the lay out of the roadw ay s on the drawing that was admitt ed int o evidenc e, but he st ated that he believe d the u-turn oc curr ed on a four -lane road.

I n the trial court, the S t at e conce ded that there was insufficient evidenc e that Villanueva had reasonable s u s picion to stop appellant’ s vehicle based on his failure to maintain a single lane. See Tex. Transp. Code § 545. 0 6 0 (r eq u iring opera tor to “drive near ly as prac tical entirely within a single lane” unless movement from lane “ca n be made safe ly ”). The State asser ted, howeve r, that the u-turn was illega l beca use appellant must have crosse d a double y ellow line to make the u-turn. Although there was no evidenc e that either road was separ ated by two solid y ellow

2lines—and at least some evidenc e to the contra ry —the State asked the trial court to take judicial notice that the u-turn occur red on a four- lane road that nece ssarily would have been divided by two solid y ellow lines “under state law.” At the conclusion of the hear ing, the trial court took the matter under advisement and subsequently issued an order deny ing the motion to suppress. No finding s of fac t and conclusions of l aw were reque sted or made , and the trial court never ruled on the request

to take judicial notice. After appellant’ s motion to suppress wa s denied, he pleade d no contest to 1 driving while intox icated a nd was sente nced pur suant to a plea ag ree ment. On appea l, appellant asser ts that the rec ord does not support the trial court’s implied fi n ding that there was rea sonable suspicion for the office r to initiate a traff ic stop. The State contends that appellant’ s u-turn was ille gal as a matter of law under section 545.051 of t he Tex as Transpor tation Code. I n the alterna tive, the State contends the stop was justified under the totality of the c ircumstance s.

A violation of the Texas Transpor tation Code provides a police office r with probable

cause to stop and seize a driver. State v. Gray , 158 S.W .3d 465, 469 (Tex. Crim. App. 2005). An office r may initiate a traff ic stop if he rea sonably suspects that the driver has violated the law. See Ford v. State , 158 S.W .3d 488, 492 (Tex. Crim. App. 2005). “[R] easona ble suspicion require s ‘that there is something out of the ordinary occur ring and some indication that the un u sual activity is related to c rime .’” Davis v. State , 947 S.W .2d 240, 244 (Tex. Crim. App. 1997) (quoting Viveros

As the State conce des, if the trial court had ruled on the reque st for judicial notice without 1 prior notification, appellan t wo u l d have been entitled to reque st an opportunity to be hear d afte r judicial notice had been taken. See Tex. R. Ev i d

. 2 0 1

. I n an y event, the State has abandoned the contention t hat appellant’s u-turn was illega l beca use i t occur

red on a four-lane road separa ted by two solid y ellow lines. 3v. State , 828 S.W .2d 2, 4 (Tex. Crim. App. 1992)) (empha sis a dded). Reasonable suspicion e x ists

if the office r has specific articula ble fac ts that, when combined with rational infere nces from those fac ts, would lead him to rea sonably suspect that a particula r person has, or soon will be, eng ag ed in criminal activity

. Neal v. State , 256 S.W .3d 264, 280 (Tex. Cr i m . Ap p . 2008); Garcia v. State , 43 S.W .3d 527, 530 (Tex. Crim. App. 200 1 ). “This is an objective standard that disreg ards any subjective intent of the office r making the stop and looks solely to whether an objective basis for the stop ex ists.” Ford , 158 S.W .3d at 492.

The first basis for the stop a sserted by the State is that appellant violated the law by making a u-turn. The only Texas statute that specific ally addre sses the leg ality of u-turns is section
545.102 of the Texas Transpor tation Code, which prohibits a driver from moving a vehicle “in the opposite direc tion when approa ching a curve or the cre st of a g rade if the vehicle is not visible to the
opera tor of another vehicle approa ching from either direc tion within 500 fee t.” Tex. Transp. Code § 545.102. There is no evidenc e that appellant’ s u-turn occur red under such circ umstances. There is als o n o ev i d en ce that appellant made the u-turn unsafe ly or rec klessly , in derog ation of posted

t ra ffic signs, without proper signa ling, over a median, in a no-passing zone, without y ieldin g t o opposing traff

ic, from the rig ht-hand lane of a four- lane divided highw ay , or in any other manner
sug g estive of illeg al ac tivity

.

The State contends, howeve r, that appellant’ s turn was per se illega l under section
545.051 of t he Transportation C o d e. Section 545.051, which gover ns driving on the right side of the roa dway , provides:

4(a) An oper ator on a roadw ay of suffic ient width shall drive on the rig ht half of the roadw ay , unless: (1) the ope rator is pa ssing a nother ve hicle; (2) an obstruction nece ssitates moving the vehicle left of the cente r o f the roadway and the opera tor y ields the right-of- way to a vehicle that: (A) is moving in the proper direc tion on the unobstructed por

tion of the roadw ay ; and (B ) is an immediate ha zard; (3) the opera tor is on a roa dway divided into three mar

ked lanes for traff ic; or (4) the ope rator is on a

roadw ay restric ted to one-w ay

traff ic. (b) An opera tor of a vehicle on a roadw ay moving more slowly than the normal speed of other vehicles at the time and place under the exis ting conditions shall drive in the rig ht-hand lane available for vehicles, or as close as prac ticable to the rig ht-hand curb or edg e of the roadw ay , unless the oper ator is: (1) pa ssing a

nother ve hicle; or (2) prepa ring for a left turn at an intersec tion or into a private road or drivewa y . (c) An opera tor on a roa d wa y h av ing four or more lanes for moving vehicles and providing for two-wa

y movement of vehicles may not drive left of the cente r line of the roa dway

except: (1 ) as authorized by an officia l traff ic-c ontrol device desig nating a specifie d lane to the left side of the c enter of the roadw ay for use by a vehic le not otherwise pe rmitted to use the lane; (2) unde r the c onditions described by Subsection (a) (2); or (3) in crossing the cente r line to make a left turn into o r out of an alley , private r oad, or dr iveway

.

Id. § 545.051. The State asser ts that appellant was not permitted to make the u -t u rn b ec au s e, by

tur ning, he nece ssarily drove left of the cente r line in violation of section 545.051 and there is no evidenc e that any of the statutory exceptions apply

. Acc ording to the State, left turns (and there fore all u-turns) are g ener ally proscr ibed by the Code ex cept as permitted by the exceptions in section
545.051 and other provisions of t he C ode that re g ulate the e x ecution of turns. See id. §§ 545.101

5(turning at intersec tion), .102 (turning in opposite direc tion on curve or cre st o f gra de),

.103 (g ener ally prohibiting turning unless movement can be made safe ly ), .152 (y ielding when turning left at intersec tion or into alley , private road, or drivewa y ), .155 (y ielding when enter ing or crossing highw ay

from alley , building, priva te roa d, or drivew ay ).
Se ct i o n 545.051 does not expressly prohibit u-turns, and it has never been so construed. Moreove r, construing section 545.051 to g ener ally prohibit u-turns would rende r section
545.102 redunda

nt and meaningle ss. See In re Est ate of Nash , 220 S.W .3 d 9 1 4 , 9 1 8 (Tex. 2007) (noting that courts “should avoid, when possible, trea ting statutory lang uag e as surplusag e”) ; Larry Koch, Inc. v . Texas Natural Re s. Conservation Comm’n , 52 S.W .3d 833, 838 (Tex. App.—Austin 2001, pet. denied) (“We will a void a construction that cr eate s a re dundancy or re nders a provision meaning less.”). A provision pr ohibiting u-turns under the specific circ umstances stated in se ction 545.102 would be mer e surplusag e if u-tur ns were cate g orica lly

prohibited by

section 545.051. Thus, it appea

rs that u-turns a

re not pe r se illeg al. Moreove r, there are no specific , articu lable fac ts in the rec ord to support a finding that appellant’ s u-turn was illega l under the particula r circumstance s of t his case . Villanueva’ s statement that t he u-turn appellant perfor med 2
was “ illega l” is conclusory and does not, by

itself, provide this Court wit h any means of a ssessing whether his opinion was objectively rea sonable. See Ford , 158 S.W .3d at 493 (off icer ’s conclusory opin io n th a

t d e f e n d a n t was following another car too closely was unsupported by specific , articula ble

There is some evidenc e that Wonder World Drive is a four- lane road, but th ere is no 2 evidenc e it was divided by a solid single or

double line, nor have I found any statute or re g ulation that require s such. I f there wer e evidenc e that appellant had crosse d over a double y ellow line to make his u- turn, I ag ree that would have g iven Villanueva rea sonable suspicion to make the stop. See B oggus v. Miller , 388 S.W .2d 240, 242 (Tex. Civ. App.—Fort Worth 1965, writ ref’ d n.r.e.)

. 6fac ts; rea sonable-suspicion analy sis require s objective, fac t u al support). “[A]n office r’s mistake

about t he lega l signific ance of facts, even if made in g ood faith, cannot provide proba ble ca use or

rea sonable suspicion.” Abney v. State , 394 S.W .3d 542, 550 (Tex. Crim. App. 2013). Nonethele ss, the State contends that, without reg ard to the illega lity of the individual vehicular movements, the stop was objectively justifiable based on the totality of the circ umstances. At the suppression hear ing, Villanueva testified that the only rea son he stopped appella n t wa s beca use he be lieved appe llant had committed two specific traff ic offe nses: Q: And besides the two traff ic violations that y ou state in y our offe nse repor t, which would be the failure to maintain the single lane and the illega l U-turn, wer e there any other re asons for the stop?
A. At that point, no. The State has conce ded insufficienc y of the evidenc e as to the first alleg ed offe nse, and I believe the evidenc e is likewise insufficient to sustain the stop as to the second. Even including the two alleg ed traff ic violations, Villanueva’ s “spec ific articula ble fac ts” are not only meag er but confusing : (1) he observe d the vehicle failing to maintain a single lane; (2) he observe d the driver make a rig ht-hand

turn and then “immediately [swing] around to the left back into the – into the rig ht-hand lanes” ; and (3) he thought the ve hicle would maintain the new direc tion of trave l, but the driver “ immediately started hitting his brake s to turn left” to return him to his orig inal route of trave l. The majority relies 3

on these circ umstances, along with e vidence that Villanueva is a 15-y ear law-e nforc ement veter an who was w orking a midnight shift, to support the re asonable -suspicion finding . None of the fa cts

Villanueva testified that appellant made a left turn to return to his orig inal route, but the 3 draw ing he provided depicts a right turn. A rig ht turn is consistent with the office r’s testimony that appellant r eturne d to his original c ourse of trave l after

making the u-turn. 7are contested. Acc ording ly , there is no issue as to Villanueva’ s cre dibilit y , meaning that we revie w

the trial court’s decision de novo. Johnson v. State , 414 S.W .3d 184, 192 (Tex. Crim. App. 2013) (“‘ [W ]hen mix ed questions of law and fac t do not depend on the evalua tion of cr ed ibilit y and demea nor, we revie w the trial judg e’s r uling de novo .’”)

. I cannot con cl u d e that the “totality of the circ umstances” shown here rende red the stop objectively rea s o n able. There is no evidenc e or testimony that appellant’ s actions wer e indicative of driving while intox icated, nor did Villanueva testify

that he had any such sus picion.
I n essenc e, the totalit y of what Villanueva observed was not hing more t han the va g uely descr ibed failure to maintain a single lane and the u -t u rn . As discussed above, Villanueva’ s conclusory

statement that appellant made an “illeg al” u-turn, without underly ing fac ts, constitutes no evidenc e of curr ent or threa tened illega lity

. See Ford , 158 S.W .3d at 493. Moreove r, not only is a u-turn not illega l, it is not at all unusual. Driver s make u-tur ns all the time.
As to appellant’ s alleg ed failure to maintain a si ng le l ane, Vi l l anueva testified t hat he could not reme mber how many times this happene d and g ave no details about it. Could the trial court “infer” from thi s testimony that it happened t hree or four times? Or even t wice? Of course

not. That would be rank specula tion. I nfer ence s must be rea sonable and based on fac ts in evidenc e. Could the trial cour t “i nfer ” that appellant’ s vehicle drifted into the adjac ent lane by a signific ant amount, perha

ps half the car ’s width? Of course not. There would be no rea sonable basis for such

an infere nce. Wit hout resor ting to pure specula tion, all that can be rea sonably be inferr ed from the office r’s testimony is that appellant’ s car drifted a few inches acr oss the lane divider a single time. There are simply

not enoug h backg round fa cts to warr ant any other infe renc e.

8“‘A t a minimum , the suspicious conduct rel i ed u p o n by law enfor ceme nt office rs

must be sufficie ntly distinguishable from that of innocent people under the same circ umstance as to clea rly , if not conclusively , set the suspect apar t from them.’” Id. (quoting Crockett v. State , 803 S.W .2d 308, 311 (Tex. Crim. App. 1991)). “[A]rti culable fac ts must amount to more than a

mere hunch or suspicion

. ” Abney , 394 S.W .3d at 548. And Villanueva’ s specia l training and experience are not sufficie nt to establish rea sonable suspicion in the abse nce of “objec tive fac tual support.” See Ford , 158 S.W .3d at 494. Measur ed using an objective standard, the “totality of the circ umstances” here (drifting slightly over a lane divider a single time and making a safe and leg al

u -t u rn ) d o not support the conclusion that there exis ted a rea sonable suspicion that appellant was driving while intox icated or had eng ag ed in or wa s about to eng ag e in illeg al ac tivity

. Thus, the State failed to elicit testimony that would objective ly permit the conclusion that appellant was violating or about to violate a traff ic law or any other law. Viewing the evidenc e in the light most favor able to the trial court’s ruling , i.e., taking all of Villanueva’ s testimony about the underly ing fac ts as true, the rec ord does not support a finding of rea sonable suspicion when the law is applied to those fac ts. Be cause the rec ord fails to reve al an objective basis and any articula ble fac ts to support the initial stop of appellant’ s vehicle, I would hold that the trial court err ed in deny ing a ppellant’s motion to suppress.

9_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Rose and Goodw in Filed: Nove mber 14, 2014

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