Appeal from the County Court at Law No. 3Galveston County,
Texas Trial Court Cause No. MD-348570
consists of Justices Jamison, Donovan, and Brown.
OPINION ON REMAND
Hill Jamison Justice
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).
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.
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."
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.
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
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.
trial court made several findings of fact and conclusions of
law relevant to our discussion.
• 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
• 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 ...