COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE STATE OF TEXAS,

 Appellant,

v.

JORGE ARTURO ESPINOZA,

 Appellee.

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No. 08-16-00087-CR

Appeal from the

County Criminal Court at Law #2

of El Paso County, Texas 

(TC# 20150C10006) 

DISSENTING OPINION

Because I disagree with the majority’s conclusion that the State met its burden of proof to 

present facts supporting a reasonable suspicion that Appellee Jorge Espinoza may be driving while 

intoxicated at the time of the traffic stop that is at issue in this case, I write separately. Although 

the majority does not reach the other two issues, I am also not convinced the State established 

reasonable suspicion to stop Espinoza for failure to maintain a single lane or to signal a lane 

change. Contrary to the majority, I would conclude that the trial court did not err in granting 

Espinoza’s motion to suppress and would affirm the trial court’s order. Respectfully, I dissent.

DWI

The majority concludes that the State presented facts supporting a reasonable suspicion 
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that Espinoza may be driving while intoxicated at the time the stop was made. On review of the 

record, I disagree that the State met its burden to show that the officer had sufficient information 

required for a warrantless traffic stop. “Reasonable suspicion requires more than a hunch; it exists 

only when an officer has specific, articulable facts that, taken together with reasonable inferences 

from those facts, would lead the officer to reasonably conclude that the person detained is, has 

been, or soon will be, engaging in criminal activity.” Delafuente v. State, 414 S.W.3d 173, 177 

(Tex.Crim.App. 2013). A reasonable suspicion determination is objectively made by considering 

the totality of the circumstances. Id.

To summarize, our record includes Officer Wilkinson’s affidavit prepared on the morning 

of the arrest, his testimony at the suppression hearing, and the video recording of the traffic stop 

as seen from Officer Wilkinson’s patrol car. In his affidavit, Wilkinson described that he had 

observed Espinoza’s vehicle straddle the right lane marker, and he began to follow. He then 

described that he observed the vehicle continue to straddle the lane marker between the middle 

and right lane of travel. Articulating no further details, he described that he then initiated a traffic 

stop and met with the driver. 

At the hearing, Wilkinson testified Espinoza’s Jeep caught his attention when he observed 

him make a U-turn and then move over to the right lane of travel and then back to the middle lane 

without signaling. Officer Wilkinson also testified that he stopped Espinoza in an area with 

establishments that serve alcohol until 2 a.m. Giving further details, Wilkinson testified he saw 

Espinoza’s vehicle, “kind of drift over and drive . . . on the line and then kind of drift back and –

he did that a few times.” On deciding to pull him over, he stated he had observed Espinoza, “enter 

the right lane again and then back to the middle lane without signaling, and then I initiated a traffic 
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stop.”

On cross-examination, defense counsel played the dashcam video from Wilkinson’s patrol 

vehicle and intermittently paused to ask questions. Defense counsel asked Wilkinson to point out 

each time he saw a traffic violation.1 As Wilkinson responded, he described seeing Espinoza,

“straddling the lanes right there,” which he explained meant he was “driving on the lane markers.”

Wilkinson added, however, that when he observed the “straddling,” it was not unsafe and, as 

shown on the video, it did not meet the definition on which he had been trained. Straddling, he 

explained, was defined by the National Highway Traffic Safety Administration (NHTSA) as a 

vehicle moving straight ahead with the center or lane marker between the left-hand and right-hand 

wheels. Although Wilkinson described Espinoza’s tire as being wider than the lane marker, and 

thus, it was “technically” in the other lane, he agreed that what was seen on the video differed from 

the NHTSA definition. 

Wilkinson also conceded that Espinoza had not actually changed lanes at the point in the 

video which he had described as lane straddling. When asked to continue and identify other 

violations, Wilkinson pointed out in the video, “[r]ight there, it looked like real brief – right there, 

he touched [the lane divider].” On further questioning, however, Wilkinson agreed that even 

though Espinoza, “began on the lane, the marker,” he drove “practically, yes, he is in his lane of 

travel.” After further viewing, Wilkinson then said, “[h]e’s actually over the line now,” but also 

added that no one else was on the road and Espinoza was not in danger of hitting anyone. 

Wilkinson asserted he had identified two violations at the beginning concerning failure to signal 

 

1 Both the trial court’s Findings of Fact and Conclusions of Law and the State’s Brief refer to timestamps from the 

dashcam video. Although we, too, can view video timestamps, our reporter’s record does not link witness 

testimony to any timestamps. 
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lane changes. First, “he entered the other lane of travel a little bit and then came back;” and, 

second, “[h]e moved over – whether he drifted or whatever – he moved over to the right lane a 

little bit, entered the right lane, with the right side of his car, and then came back over without 

signaling.” Clarifying, Wilkinson testified that he agreed that no signaling is needed if he’s not 

changing lanes.

Officer Wilkinson testified that he had been a peace officer with the El Paso Police 

Department for nine and a half years and was assigned to the DWI Task Force. Without providing 

details, he also testified that he was SFST certified, had taken numerous courses on identifying 

intoxicated drivers, and had attended numerous training sessions related to impaired drivers. 

When first asked whether he had also suspected intoxication before initiating the stop, Wilkinson 

replied, “I don’t recall having a hunch. I just remember pulling him over for the violation.” 

Later, on redirect, Wilkinson testified differently stating he had reasonable suspicion to believe 

that Espinoza was intoxicated at the moment when he turned on his lights to initiate his stop.

When read in its entirety, Wilkinson’s testimony was equivocal on whether he initiated a 

traffic stop based on a suspicion of DWI based on facts and reasonable inferences. When asked 

whether moving from one lane and back without signaling indicated a sign of intoxication, 

Wilkinson responded “no.” Then, when asked whether “drifting from lane to lane,” in and of 

itself, would indicate a sign of intoxication, Wilkinson responded “[i]t’s a cue, based on my 

experience, that—over the years, its’s not normal behavior for someone to kind of straddle the lane 

and come back. Especially the time of day, the area, it’s a cue, yes.” The area, he further 

explained, was well-known “for people to go and get drinks.” With this answer, Officer 

Wilkinson likely provided sufficient information to support having suspicion of intoxication. On 
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cross-examination, however, he went on to say that he had not formed “a hunch” of impairment, 

despite years of training, and he described the area not for assessing the totality of circumstances, 

but rather, as a response to the prosecutor asking where he was at when he initiated his stop. 

Despite his training and experience, Officer Wilkinson did not clearly articulate having a 

suspicion of DWI as a reason he initiated the traffic stop and, on occasion, said otherwise. Officer 

Wilkinson’s testimony left such a light impression with the trial court that the offense itself is not 

even mentioned in the court’s findings of fact and conclusions of law. Indeed, the court concluded 

that Espinoza’s vehicle did not swerve or veer, but instead moved in a slow graduated manner 

before moving in a similar manner back to the left, and only the vehicle’s tires touched the white 

line marker on the street.

On appellate review, DWI is treated as having been implicitly rejected as a justification for 

the stop given this offense is not mentioned in the court’s ruling. See State v. Alderete, 314 

S.W.3d 469, 473 (Tex.App.--El Paso 2010, pet. ref’d). Following that rejection, I would therefore 

imply findings regarding Wilkinson’s testimony that are consistent with the trial court’s ruling and 

supported by the record. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Given 

Officer Wilkinson’s equivocal testimony, there is ample ground to believe that the trial court found 

his testimony lacking in detail or not credible. See Guzman v. State, 955 S.W.2d 85, 89 

(Tex.Crim.App. 1997)(credibility and demeanor determinations must be given almost total 

deference).

Finally, when determining whether an officer had reasonable suspicion to conduct a traffic 

stop for DWI, we should consider the time of day and the area in which a traffic stop occurs, in 

addition to testimony from the officer about the driving pattern of the vehicle under the totality of 
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the circumstances. See Curtis v. State, 238 S.W.3d 376, 379–80 (Tex.Crim.App. 2007); Alderete, 

314 S.W.3d at 473. However, I find Curtis and Alderete distinguishable. In Curtis, because the

trial court had ruled in favor of the prosecution, historical facts and inferences on review were 

supportive of an officer engaging in a traffic stop based on reasonable suspicion of a driver 

committing a DWI offense. Id., at 381. In Alderete, we reversed a trial court’s suppression 

ruling because the officer testified the driver “was stopped not because of a violation of the traffic 

code, but based on suspicion of intoxication . . . .” State v. Alderete, 314 S.W.3d 469, 473 

(Tex.App.--El Paso 2010, pet. ref'd). Thus, Alderete included direct testimony from the officer 

that he had suspected impairment of the driver as a basis for the initial stop. 

Here, I would conclude that the trial court’s ruling does not fall outside the zone of 

reasonable disagreement considering that Officer Wilkinson testified inconsistently about having 

formed a reasonable suspicion to believe that Espinoza was impaired while driving. Contrary to 

the majority opinion, I would afford greater deference to the trial court’s determination of historical 

facts to the extent that a determination of reasonable suspicion depends to some extent on Officer 

Wilkinson’s credibility in articulating his observations and reasonable inferences. On review, I 

would hold that the trial court did not abuse its discretion in implicitly rejecting the State’s theory 

that Wilkinson’s testimony supported reasonable suspicion of a DWI offense. Accordingly, I 

would overrule the State’s first and fourth issue.

Failure to Maintain a Single Lane

I am also not convinced that Officer Wilkinson had reasonable suspicion to stop Espinoza 

for failure to maintain a single lane. In its second issue, the State argues there is indisputable 

visual evidence that an officer in Wilkinson’s position would have been justified in detaining 
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Espinoza for failing to maintain a single lane. The State concedes in its brief that Officer 

Wilkinson testified he had initiated his traffic stop not for a failure to maintain a single lane 

violation, but for a failure to signal his intention to make a lane change. Rejecting the lane 

violation, the trial court’s findings state, “[t]he video . . . does not show that the wheels crossed 

completely over to the right lane, as stated by the officer, and he further stated that these 

movements were not unsafe and posed no other problems.” 

Texas Transportation Code Section 545.060, in pertinent part, states that “an operator on a 

roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as 

practical entirely within a single lane; and (2) may not move from the lane unless that movement 

can be made safely.” TEX.TRANSP.CODE ANN. § 545.060(a)(1–2). In Leming v. State, the Court 

of Criminal Appeals construed the statute for the first time and held it imposed two independent 

requirements. 493 S.W.3d 552, 559 (Tex.Crim.App. 2016)(plur. op.). As Leming found, the 

statute imposes a requirement aspect (to maintain a single lane as far as is practical) and a 

prohibition aspect (do not change lanes unless it is safe to do so). Id. Because the two aspects 

are joined by the conjunction “and,” Leming held that either statutory prohibition provides a means 

of committing the same offense. Id. “[I]t is an offense to change marked lanes when it is unsafe 

to do so; but it is also an independent offense to fail to remain entirely within a marked lane of 

traffic so long as it remains practical to do so, regardless of whether the deviation from the marked 

lane is, under the particular circumstances, unsafe.” Id., at 559–60. Lower court decisions that 

interpreted the statute singularly, Atkinson v. State, 848 S.W.2d 813 (Tex.App.--Houston [14th

Dist.] 1993, pet. ref’d) and Hernandez v. State, 983 S.W.2d 867 (Tex.App.--Austin 1998, pet. 

ref’d), respectively, were expressly rejected by Leming. Id., at 559.
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Like this case, the facts in Leming concerned the first prohibition only—whether the driver 

failed to drive as nearly as practical entirely within a single lane of traffic. Id., at 561. In Leming, 

the officer could only testify that the “tires were on the stripes,” and the video established that 

much—but did not clearly show the vehicle entered the next lane. Id. In reviewing whether 

reasonable suspicion had been met, Leming concluded it was not necessary to decide whether 

driving on the divider stripes constituted a failure to stay “entirely within” a designated lane. Id. 

“For a peace officer to stop a motorist to investigate a traffic infraction, as is the case with any 

investigative stop, proof of the actual commission of the offense is not a requisite.” Id., (quoting 

Drago v. State, 553 S.W.2d 375, 377 (Tex.Crim.App. 1977)). Instead, Leming focused on a 

review of the totality of the circumstances, which in that case included not only the testimony of 

the officer but additionally included testimony from a concerned citizen. Id. 

In Leming, the citizen involved had originally prompted the investigation by reporting that 

a vehicle on the roadway was “swerving from side to side.” Id., at 554. When the arresting 

officer first observed the defendant’s vehicle, he saw that it was traveling thirteen miles per hour 

below the posted speed limit and that the driver “slowed down more and more.” Id. The vehicle 

then began to swerve to the left, came “uncomfortably close” to the street curb, drifted back to the 

right, and came “precariously close” to the curb at least twice more before the officer pulled the 

vehicle over after following it for several miles. Id., at 554, 563. The officer justified his stop 

pursuant to the community caretaking function. Id. Thus, the record in Leming showed that the 

officer involved, “knew from personal observation that [the driver] had several times at least come 

very close to entering the adjacent lane—even if he could not quite tell whether [he] had actually 

entered it—and he knew that [the citizen] had also observed [the driver’s vehicle] to be ‘swerving’
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even before [the officer] arrived on the scene.” [Emphasis added]. Id., at 561. Under the 

totality of the circumstances, Leming concluded the record justified a temporary detention to 

investigate whether the driver involved failed to remain in his dedicated lane of traffic as far it was 

practical to do so under the circumstances. Id. Thus, in analyzing the first prohibition (a 

requirement to practically remain in a single lane), Leming reiterated it mattered not whether the 

driver’s failure to remain in his lane was additionally unsafe under the circumstances. Id.

Here, in deciding whether reasonable suspicion of a lane violation supported the temporary 

detention, the trial court considered Officer Wilkinson’s testimony, viewed the dashcam video, 

and read the affidavit accompanying the search warrant. In conclusion of law four, the trial court 

stated, “the defendant’s vehicle did not swerve or veer, but instead moved to the right in a slow, 

graduated manner before moving in a similar manner back to the left.” Moreover, “[o]nly the 

vehicle’s tires touched the white lane marker on the street.” More specifically, in rejecting the 

lane violation as a basis for the stop, the trial court noted the officer testified he observed violations 

at “2:10:47, 2:10:53, and 2:10:54,” for his determination to stop Espinoza. Reaching a contrary 

conclusion from the officer, the trial court stated:

The video, on the contrary, does not show that the wheels crossed completely over 

to the right lane, as stated by the officer, and he further stated that these movements 

were not unsafe and posed no other problems. The traffic was light and no other 

vehicles took evasive action to avoid the defendant’s vehicle, nor was there any 

indication that the weaving was part of a more erratic behavior or was unsafe[.]

 

Thus, in addressing both prohibitions of the statute, the trial court found: (1) that the video 

did not show that the wheels crossed completely over to the right lane as stated by the officer; and 

(2) that movements seen were not unsafe and posed no other problems. The trial court concluded 

that Espinoza’s vehicle moved in a slow, graduated manner before moving in a similar manner 
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back to the left, and only the vehicle’s tires touched the white lane marker on the street. The trial 

court further concluded that the officer did not have reasonable suspicion to stop the defendant and 

further concluded that the stop was unlawful. 

Viewing the record in the light most favorable to the trial court and deferring to the court’s 

determination of historical facts, I would hold that the trial court did not abuse its discretion in 

finding that Wilkinson had unlawfully detained Espinoza for a suspected violation of Section 

545.060. See TEX.TRANSP.CODE ANN. § 545.060(a)(1–2). Both Officer Wilkinson’s testimony 

and the dashcam video support the trial court’s finding that Espinoza’s vehicle mostly remained

within the marked lane in which he was traveling and did not make unsafe movements. Unlike 

Leming, Espinoza did not swerve dangerously from left to right, did not come close to striking a 

curb, and was not traveling well below the speed limit. Officer Wilkinson testified no one else 

was on the road and Espinoza was not in danger of hitting anyone. 

Unlike Leming, a concerned citizen did not call in and report additional swerving unseen 

by the officer or unrecorded on video. Officer Wilkinson did not stop Espinoza pursuant to the 

community caretaking function, like the officer in Leming did, but originally testified that it was 

because of a purported signal violation. See Leming, 493 S.W.3d at 554. Although Officer 

Wilkinson did not testify how long he followed Espinoza before pulling him over, the time stamp 

of the video clearly shows it was under a minute—far less than the “several miles” and “several 

minutes” of time and distance reported by the arresting officer in Leming. See id., at 554. 

Based on the totality of the circumstances, I would hold that the trial court did not err by 

determining the stop lacked reasonable suspicion for failure to maintain a single lane. The trial 

court’s findings of historical facts—the tire’s touch of the lane marker coupled with moving to the 
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right in a slow, graduated manner before moving in a similar manner back to the left—without 

other indicators of criminal activity, were not enough to justify the stop for a violation of failing 

to maintain a single lane. I would overrule the State’s second issue.

Lane Change Violation

Finally, although the majority also does not reach this issue in its opinion, I would hold 

that Officer Wilkinson lacked reasonable suspicion to stop Espinoza for failure to signal a lane 

change. In its third issue, the State argues Wilkinson had sufficient reasonable suspicion to stop 

Espinoza as he testified he observed Espinoza’s right front tire cross over the white lane marker in 

violation of Texas Transportation Code Section 545.104, and his testimony was supported by the 

video evidence.

Texas Transportation Code Section 545.104(a), states in pertinent part, “[a]n operator shall 

use the turn signal . . . to indicate an intention to turn, change lanes, or start from a parked position.” 

[Emphasis added]. See TEX.TRANSP.CODE ANN. § 545.104(a). Thus, from the plain language of 

the statute, the driver’s intention to change lanes is required for Section 545.104 to apply. See, 

e.g., Power v. State, No. 13-05-693-CR, 2006 WL 2516525, at *2–3 (Tex.App.--Corpus Christi 

July 27, 2006, no pet.)(mem. op., not designated for publication); State v. Griffin, No. 04-12-

00192-CR, 2003 WL 21018319, at *2 (Tex.App.--San Antonio May 7, 2003, no pet.)(not 

designated for publication). Weaving, such that only one or two of the vehicle’s tires cross over 

the lane marker, does not constitute a lane change under Section 545.104 when the driver did not 

intend to change lanes. See, e.g., Power, 2006 WL 2516525, at *2–3 (holding that an officer did 

not have reasonable suspicion to stop a driver for failure to signal a lane change when the driver 

never changed lanes, but instead, the driver’s two right tires only drifted into the outside lane and 
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back). As recently confirmed by the Court of Criminal Appeals, “[c]riminal statutes outside the 

penal code must be construed strictly, with any doubt resolved in favor of the accused.” State v.

Cortez, 543 S.W.3d 198, 206 (Tex.Crim.App. 2018)(quoting Stevenson v. State, 499 S.W.3d 842, 

849 (Tex.Crim.App. 2016)). 

Here, the trial court’s factual findings state that Wilkinson testified he observed Espinoza 

drift from lane to lane approximately two times and failed to signal his lane change. Moreover, 

its conclusions of law state that Wilkinson identified violations he observed at 2:10:47, 2:10:53, 

and 2:10:54. After viewing the video, however, the trial court concluded that the video did not 

support the officer’s testimony as it did not show that the wheels crossed completely over to the 

right lane as stated by the officer. 

I would hold that the record supports the trial court’s findings as there is nothing to indicate 

that Espinoza intended to change lanes nor ever executed a lane change until after the officer turned 

on his emergency lights to initiate a traffic stop. Moreover, as stated earlier, Officer Wilkinson’s 

testimony on the issue was equivocal and the State failed to elicit sufficient facts to support an 

objective determination of a signal violation. In fact, Wilkinson admitted that a driver does not 

need to use a turn signal if he does not intend to change lanes. On this record, I would hold that 

the trial court did not abuse its discretion in concluding that Officer Wilkinson was not justified in 

stopping Espinoza for suspicion of violating Section 545.104. See Power, 2006 WL 2516525, at 

*2–3; Griffin, 2003 WL 21018319, at *2. I would overrule the State’s third issue.

Conclusion

In sum, I do not believe that Officer Wilkinson had reasonable suspicion to stop Espinoza 

for a traffic offense or for DWI. I would overrule the State’s issues and affirm the trial court’s 
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decision granting Espinoza’s motion to suppress, and therefore I respectfully dissent from the 

majority in this case.

November 30, 2018

GINA M. PALAFOX, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.