COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00418-CR

BRANDON KURTIS JEWELL APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY

TRIAL COURT NO. CCL2-12-0334

----------

MEMORANDUM OPINION1

----------

Appellant Brandon Kurtis Jewell appeals from the trial court’s denial of his

motion to suppress. We affirm.

Background Facts

On February 26, 2012, at approximately 2:30 a.m., Trooper Jacob Smith 

was driving on Interstate 20 in Parker County, Texas. Behind him, he saw a car 

 

1See Tex. R. App. P. 47.4.
2

driven by Appellant that had blue headlights that “were probably bluer than the 

lights on [his] emergency lights.” Smith believed that the lights were nonstandard 

and in violation of federal and state law. After allowing the car to pass, Smith 

observed the vehicle weave over the “fog line” separating the highway from the 

improved shoulder at least twice.2

Smith stopped Appellant based on the traffic violations that he observed 

and because he thought the driver might be sleepy or intoxicated. Appellant had 

bloodshot, glassy eyes and smelled of alcohol. Appellant admitted to drinking 

two or three beers that night, although Smith believed Appellant had drunk more 

than that. Smith administered four field sobriety tests, determined that Appellant 

was intoxicated, and arrested him.

During a jury trial, Smith testified that he pulled Appellant’s car over and 

approached the vehicle. Appellant objected to any further testimony from Smith 

on the ground that there was no probable cause or reasonable suspicion to pull 

him over. The trial court overruled the objection. A jury found Appellant guilty of 

driving while intoxicated (DWI), and the trial court sentenced Appellant to 180 

 

2

The recording made by the patrol car camera during the traffic stop was 

admitted into evidence as State’s Exhibit 1. This court has reviewed that 

recording and confirmed that Appellant drove on the improved shoulder to the 

right of the main traveled portion of the roadway. See Tex. Transp. Code Ann. 

§ 545.058 (West 2011).
3

days jail time probated for 24 months, an $800 fine, court costs, community 

service, and completion of Alcohol Education and Victim Impact programs.3

Appellant filed a notice of appeal and now contends in his sole issue that 

the trial court erred in denying his oral motion to suppress because there was no 

reasonable suspicion to stop him.

Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a 

bifurcated standard of review. 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 give almost total deference to a trial court’s rulings on questions of historical 

fact and application-of-law-to-fact questions that turn on an evaluation of 

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 motion to 

suppress, we must view the evidence in the light most favorable to the trial 

court’s 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, as here, the 

record is silent on the reasons for the trial court’s ruling, or when there are no 

 

3

The punishment assessed was agreed to by the State, Appellant, and his 

counsel.
4

explicit fact findings and neither party timely requested findings and conclusions 

from the trial court, we imply the necessary fact findings that would support the 

trial court’s ruling if the evidence, viewed in the light most favorable to the trial 

court’s ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 

241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then review the 

trial court’s legal ruling de novo unless the implied fact findings supported by the 

record are also dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.

Discussion

In his sole issue, Appellant argues that reasonable suspicion could not be 

based on Smith’s observances of (1) his “fail[ing] to maintain a single lane of 

traffic” and (2) his “bluer than normal headlights.”

A detention may be justified on less than probable cause if a person is 

reasonably suspected of criminal activity based on specific, articulable facts. 

Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche v. State, 

10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer conducts a lawful 

temporary detention when he or she has reasonable suspicion to believe that an 

individual is violating the law. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 

2010); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable 

suspicion exists when, based on the totality of the circumstances, the officer has 

specific, articulable facts that when combined with rational inferences from those 

facts, would lead him to reasonably conclude that a particular person is, has 

been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This 
5

is an objective standard that disregards any subjective intent of the officer 

making the stop and looks solely to whether an objective basis for the stop 

exists. Id.

Appellant argues that the State was required to establish the elements of a 

traffic violation in order for the trial court to find that valid reasonable suspicion 

existed to justify the stop. Specifically, Appellant argues that Smith’s testimony 

could not support reasonable suspicion that he had violated section 545.060(a) 

of the transportation code because the State did not prove that Appellant 

unsafely moved out of his lane of traffic. See Tex. Transp. Code Ann. 

§ 545.060(a) (West 2011) (stating that a driver may not move from his lane 

unless the movement can be made safely); Fowler v. State, 266 S.W.3d 498, 

503–04 (Tex. App.—Fort Worth 2008, pet. ref’d). Appellant’s argument, and the 

cases cited in support thereof, all regard a stop made based on section 

545.060(a). The officer in the instant case never testified that he was relying 

upon section 545.060(a) as a basis for his stop; he testified that he witnessed 

Appellant driving on the improved shoulder, which is a violation of section 

545.058.4 Smith testified,

 

4

Texas Transportation Code section 545.058(a), entitled “Driving on 

Improved Shoulder,” provides, 

An 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:

(1) to stop, stand, or park;
6

Q. Okay. Was the driving that you saw a violation of Texas 

law in itself?

A. Only when you drive over the shoulder. You can weave 

around it in your lane, you just can’t cross the lines unless you use 

your turn signal or you’re driving on the shoulder.

Q. This Texas law specified certain given situations where a 

person can drive on a shoulder?

A. Yes, sir.

Q. And did you see any of those circumstances that existed at 

that time?

A. No, sir.

Q. So you decided to pull the person over?

A. Yes, sir.

In the hearing outside the presence of the jury, the State argued that the stop 

was legal for multiple reasons, none of which was a violation of section 

 

(2) to accelerate before entering the main traveled lane of 

traffic;

(3) to decelerate before making a right turn;

(4) to pass another vehicle that is slowing or stopped on the 

main traveled portion of the highway, disabled, or preparing to make 

a left turn;

(5) to allow another vehicle traveling faster to pass;

(6) as permitted or required by an official traffic-control 

device; or

(7) to avoid a collision. 

Tex. Transp. Code Ann. § 545.058(a).
7

545.060(a). The State said, “The officer also testified that this vehicle was driven 

on the shoulder. And it clearly stated that was a violation of the law unless 

certain circumstances existed, which he stated did not.”

Unlike section 545.060, section 545.058(a) prohibits a driver from driving 

on an improved shoulder when doing so is not a necessary part of achieving one 

of the seven approved purposes, even when driving on the shoulder may be 

done safely. See State v. Munsey, 424 S.W.3d 767, 773 (Tex. App.—Fort Worth 

2014, no pet.); Thomas v. State, 420 S.W.3d 195, 200 (Tex. App.—Amarillo 

2013, no pet.) (holding that the traffic offense of driving on the improved shoulder 

supports an initial detention of a driver); State v. Lockhart, No. 07-04-00304-CR, 

2005 WL 1838457, at *3 (Tex. App.—Amarillo Aug. 2, 2005, no pet.) (not 

designated for publication) (same); Tyler v. State, 161 S.W.3d 745, 748–49 (Tex. 

App.—Fort Worth 2005, no pet.) (holding that traveling on the shoulder was 

independently sufficient to provide probable cause to stop the driver). Nothing in 

this record shows that Appellant’s driving on the improved shoulder was 

necessary to achieve one of the seven approved purposes, even if he was 

driving safely on the shoulder. See Munsey, 424 S.W.3d at 773. Smith 

articulated specific facts that support reasonable suspicion that Appellant violated 

section 545.058(a) and, therefore, the trial court did not err by denying 

Appellant’s oral motion to suppress. 
8

Furthermore, the testimony establishes reasonable suspicion of driving 

while intoxicated. The court of criminal appeals has explained the standard for 

warrantless traffic stops thusly:

A law enforcement officer may stop and briefly detain a person 

for investigative purposes on less information than is constitutionally 

required for probable cause to arrest. Terry, 392 U.S. at 21. In 

order to stop or briefly detain an individual, an officer must be able to 

articulate something more than an “inchoate and unparticularized 

suspicion or ‘hunch.’” Id. Specifically, the police officer must have 

some minimal level of objective justification for making the stop, i.e., 

when the officer can “point to specific and articulable facts which, 

taken together with rational inferences from those facts, reasonably 

warrant [the] intrusion.” Id. The reasonableness of a temporary 

detention must be examined in terms of the totality of the 

circumstances. 

. . . . 

. . . [T]ime of day is a relevant factor in determining 

reasonable suspicion. . . . Similarly, . . . location near a bar district 

where police have made numerous DWI arrests is also a relevant 

factor in determining reasonable suspicion. 

Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (some citations 

omitted). Thus, an officer may stop a driver based on a reasonable suspicion of 

DWI even when the driver has not violated a traffic law and has not endangered 

other drivers. See James v. State, 102 S.W.3d 162, 171–72 (Tex. App.—Fort 

Worth 2003, pet. ref’d) (distinguishing stops made based “only upon observation 

of a traffic offense” from those in which the officer believes a driver might be 

impaired, such as by intoxication); Cook v. State, 63 S.W.3d 924, 929 (Tex. 

App.—Houston [14th Dist.] 2002, pet. ref’d).
9

Smith testified that he decided to stop Appellant’s vehicle after he saw 

Appellant repeatedly drive over the fog line because he “thought possibly this 

person was pretty sleepy and needed to be woke[n] up or may be intoxicated.” 

He testified that he witnessed Appellant’s driving around 2:30 in the morning. He 

also stated that it was illegal to cross lane lines without using a turn signal or to 

drive on the shoulder unless under specific circumstances, none of which were 

present at the time of the stop.

These facts, given the totality of the circumstances and viewed in the light 

most favorable to the trial court’s ruling, support the trial court’s conclusion that 

Smith had reasonable suspicion to stop Appellant. See Curtis v. State, 238 

S.W.3d 376, 381 (Tex. Crim. App. 2007) (holding that a rational inference from 

observing a car “weaving in and out of his lane several times, over a short 

distance, late at night” was that the driver was intoxicated and that such 

circumstances justified an investigative stop); Dunkelberg v. State, 276 S.W.3d 

503, 506–07 (Tex. App.—Fort Worth 2008, pet. ref’d) (holding that stop based on 

suspicion of DWI was reasonable based on “the manner in which the vehicle was 

operated in conjunction with the time of night”); James, 102 S.W.3d at 172 

(“Erratic or unsafe driving may furnish a sufficient basis for a reasonable 

suspicion that the driver is intoxicated even absent evidence of violation of a 

specific traffic law.”); McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.—Fort 

Worth 2001, pet. ref’d) (holding that officer’s suspicion that driver was falling 

asleep or intoxicated was reasonable based on observations of driver driving
10

slowly and twice crossing the lane stripe even “assuming Officer Beauchamp’s 

testimony may not have established a reasonable suspicion that appellant had 

violated a traffic law”). We therefore hold that the trial court did not err by 

denying Appellant’s oral motion to suppress. We overrule Appellant’s sole issue.

Conclusion

Having overruled Appellant’s sole issue, we affirm the trial court’s 

judgment.

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH

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

DELIVERED: July 10, 2014