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State v. Bernard

Court of Appeals of Texas, Fourteenth District

January 23, 2018

THE STATE OF TEXAS, Appellant
v.
ALBERT TYRONE BERNARD, Appellee

         On Appeal from the County Court at Law No. 3Galveston County, Texas Trial Court Cause No. MD-348570

          Panel consists of Justices Jamison, Donovan, and Brown.

          OPINION ON REMAND

          Martha Hill Jamison Justice

         This State's appeal arises from the trial court's suppression of evidence obtained during a warrantless stop and blood alcohol test results in the prosecution of appellee Albert Tyrone Bernard for misdemeanor driving while intoxicated. It comes to us on remand from the Texas Court of Criminal Appeals. See State v. Bernard, 512 S.W.3d 351 (Tex. Crim. App. 2017).

         We originally held that the trial court did not abuse its discretion in suppressing the warrantless stop and results of a blood draw because the State presented no evidence that Bernard's failure to stay in a single marked lane was unsafe and the traffic stop was unlawful. State v. Bernard, 503 S.W.3d 685, 691-92 (Tex. App.-Houston [14th Dist] 2016), pet. granted, judgment vacated, 512 S.W.3d 351 (Tex. Crim. App. 2017). On remand, we address only whether "the traffic stop was supported by reasonable suspicion that Bernard was driving while intoxicated." See Bernard, 512 S.W.3d at 352. We conclude that it was not and affirm the ruling of the trial court granting Bernard's motion to suppress.

         Background

         We include a brief recitation of the facts relevant to this remand. Deputy Tracy Watson was traveling in Galveston County when she observed a vehicle, driven by Bernard, approximately a quarter mile in front of her. She testified that the vehicle was "swerving from lane to lane and even going into the center lane." Watson activated her emergency lights and pulled the vehicle over "to check the welfare of the driver."

         Watson testified that Bernard was driving his vehicle at the correct speed, all equipment was functioning properly on the vehicle, the registration and insurance were valid, and Bernard stopped his vehicle normally when he was pulled over. Watson further testified that Bernard's driving did not interfere with any other vehicles and there was nothing unsafe about his driving.

         Video surveillance in Watson's vehicle recorded Bernard's driving for two minutes prior to Watson's activating her emergency lights. After viewing the video at the hearing, Watson conceded that the vehicle's tires went outside the lane only twice and "not far." She also testified that "there could have been more violations prior to the activation of my lights" but did not state that there had been. The video shows Watson approaching the vehicle, and Watson testified both that she followed Bernard for one to one-and-one-half minutes and that the video surveillance recorded two minutes before Watson initiated her emergency vehicle lights. Thus, the entire encounter is captured on video.

         Deputy Jacob Manuel arrived at the scene to assist Watson with the stop. He observed the video at trial and noted that Bernard swerved twice. The first time, Bernard crossed left over the line approximately six to eight inches, and the second time, he crossed right over the line approximately four inches. Manuel later testified on redirect that he observed Bernard on the video cross the line three to four times. But the video reflects that Bernard crossed the line only two times. Manuel did not observe any interference with other vehicles or any unsafe driving.

         The trial court made several findings of fact and conclusions of law relevant to our discussion.

         Findings:

• Watson followed Bernard for approximately one to one-and-one-half minute before Watson activated her emergency lights and initiated a warrantless traffic stop on Bernard;
• Watson's dash cam video began recording approximately two minutes prior to her activating her emergency lights;
• Bernard properly and without incident initiated his right turn signal, changed lanes into the right lane, and pulled onto the shoulder of the roadway upon seeing Watson's flashing emergency lights;
• Watson testified Bernard's vehicle went outside his lane of travel twice and that his vehicle's tires did not cross the line ...

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