NO. 07-06-0188-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C SEPTEMBER 5, 2006

______________________________ KENNETH R. MCCLISH, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM COUNT Y COURT AT LAW NO. 1 OF POT TER COUNT Y; NO. 113400-1; H ONORABLE W.F. “CORKY” ROBERTS, JU DGE

_______________________________ Before QUINN, C.J., and REAVIS an d HANCOCK, JJ.
MEMORA NDUM OPIN ION
Followi ng a plea of guil ty, appell ant Kenneth R. M cClish w as convic

ted of drivi ng while intoxicated and sent ence d to n inet y days confinement, suspended, and an $800 fine. Presenting a sole point of er ror, appella nt maintains the evidenc e was ins ufficient to suppor t the t rial court ’s den ial of h is mot ion to suppre ss. We affirm.2

W hile on patrol one ni ght on Inters tate 40, Trooper Jason Lindley

and his partner observed one-third to one-half of appellant’s van cross the white fog line onto the improved shoulder while app ellant

was trav eling on the highway . After their initial obs ervation, they activated the patrol car video camer

a. Accor ding t o the evidence, appellant’s van again touched the fog line s everal ti mes, but did not c ross it. The troopers foll owed appellant for approximately a half mile, becam e conc erned he might be impaired or fatigued, and initiated a traffic stop. Aft er appellant was pulled over and failed sobriet y test s, he was arrested for dr ivi ng w hile i ntoxi cated. Foll owin g the denial of his m o tion t o suppress, he pled guilt y and wa s convic

ted of the offense.
We review

a trial co urt's rul ing on a motion to suppr ess for abuse of disc retion. State
v. Dixon, 20 06 WL 335993, at *3 (Tex.C r.App. Feb. 25, 2006). See also Balentine v . State, 71 S.W .3d 763, 768 (Tex.Cr.App. 20 02). Under this s tandard, w e afford almost total deference to the trial court's determination of histor ical facts w hen supported by the record. Guzman v. State, 95 5 S.W.2d 85, 89 (Tex.Cr. App. 1997). However , mixed q uestions of law and fact, such as question s involv ing reasonabl e suspicion and probable cause, are reviewed de novo. Id. Where, as here, the trial court fails to make wri tten findings of fact,
we view the evidence in the light most favorable to t he trial cour t's ruling and assume the trial court made impli cit findings of fact that support its ruling as long as those f indings are supported by the record. Carmouche v. State, 10 S.W .3d 323, 328 (Tex.Cr.App. 20 00).1 Section 545.058(a) provides:

(a) An operato r may dri ve on an impr oved shoulder

to the rig ht of

the main traveled portion of a roadw ay if that oper

ation is neces sary and may be done saf ely, b ut on ly: (1) to stop, stand, or park; (2) to accelerate before ent ering the mai n traveled lane of traffic; (3) to decel erate before making a right t urn; (4) to pass anothe r vehicl e that is sl owing or stopped on the main traveled portion of the highway, disabl ed, or prepari ng to make a left turn; (5) to allow another vehicle traveling faster to pass; (6) as permi tted or req uired by an official traffic-control devi ce; or (7) to avoid a colli sion.

3 Itis wel l settled that

a traffic vi olation committed in an officer's p resence authori zes an initial stop. Armitage v. State, 637 S.W .2d 936, 939 (Tex.Cr. App. 1982 ). See also Garc ia v. St ate, 827 S .W .2d 9 37, 9 44 (T ex.Cr. App. 1992 ). It i s a tra ff ic viol atio n to d rive on an improved shoulder of a road way except for certai n purposes li sted in secti on 545.058(a) of the Texas Transportati on Code. 1
Atthe suppres sion h earing, Li ndley testi fied that the first time a portion of appella nt’s van cros sed the whi te fog line onto the shoulder co nstituted a v iolation of sec tion 545.058. He further test ified that none of the statutory exceptions f or doing s o applied. He conceded, however, that appellant did not commit any other traff ic violations.4

By his sole co ntention, appell ant challeng es the propri ety of the traffic stop. Relying on Hernandez v. State, 983S.W .2d 867 (Tex.App.–Au stin 1998, pet. ref’d) , he argues t he brevity of tim e his van partial ly cros sed the fog linedid not indicate he drove on the shoulder in viol ation of section 545 .058. Hernandez involved a violati on of section 545.060 of the Code, entitle d “Driv ing on Roadw ay Laned for Traffic.”It does not apply to c rossing a fog line ontothe shoulder, and we decli ne to utiliz e its ratio nale to the underl ying facts. Appellant

also rel ies on S tate v. Tarv in, 972 S.W.2d 910 (Tex.App.–Waco 1998, pet. ref’d), in sup port of his arg ument that briefly c rossing t he white fog line wi thoutevidence of more did not j usti fy

the stop. As i n the underly ing case, t he officer in Tarvin testified that
no other traffic v iolations oc curred. Id . at 912. However, the officer al so testified ther e was “nothing else unusual” about Tarvin’ s drivi ng. Trooper Li ndley, on the other hand, testified thatappellant’s d riving caused him conce rn on whether appellant was impaired or fatigued. He further testified that ap pellant’s dr iving “raised the question that the subject mig ht be under the influence of alco hol.” Thus, Tarvin is distinguishable because the officer did not testify to any

indicationsof intoxicat ion or other c riminal acti vity. Id.
We determine, after v iewing the evidence in the lig ht most fav orable to t he trial court’s ruling, that it wa s sufficient to al low Trooper Li ndley to reasonably conclude appellant

violated section 545.058( a) of the Code and ther efore had probable cause to initiate the t raffic stop. Appell ant’s sole poi nt of error is overrul ed.5

Acco rdin gly, the trial court’s order denying appellant’s motion to sup pre s s is affirmed.
Don H. Reavis Justice Do not publish

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