In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-17-00408-CR

___________________________

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

CHASE DANIEL KILLION, Appellant

V.

THE STATE OF TEXAS
2

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.
3

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).

2

See id. § 545.058 (restricting driving on an improved shoulder).
4

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 
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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”).
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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 
7

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 
8

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 
9

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.
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/s/ Mark T. Pittman

Mark T. Pittman

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: January 31, 2019