STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE
SEVENTH COURT OF APPEALS POTTER COUNTY
Richardson, J., delivered the opinion of the Court in which
Hervey, Alcala, Newell, Keel, and Walker, JJ., joined.
Newell, J., filed a concurring opinion in which Keel, J.,
joined. Keller, P.J., filed a dissenting opinion in which
Keasler, J., joined. Yeary, J., filed a dissenting opinion.
Jose Luis Cortez, was stopped by a State Trooper for
unlawfully driving on the improved shoulder of the
highway because the tires on Cortez's
minivan purportedly touched the white painted "fog
line" separating the roadway from the shoulder. Upon
searching Cortez's vehicle, the Trooper found drugs and
arrested Cortez. Finding that the Trooper did not have
a lawful basis for the traffic stop, the trial court granted
Cortez's motion to suppress. The court of appeals upheld
the trial court's suppression order. We agree that the
Trooper did not have a reasonable basis to stop Cortez's
vehicle. We affirm the judgment of the court of appeals.
hearing on the motion to suppress, the trial court issued
detailed findings, concluding that, (1) it was not clear from
the Trooper's dashcam video whether Cortez's vehicle
even touched the fog line; (2) even if Cortez's vehicle
touched the fog line, there was no proof that he crossed over
the fog line and drove on the improved shoulder; and (3) even
if Cortez drove on the improved shoulder, he was statutorily
entitled to do so.
court of appeals upheld the trial court's suppression
order, concluding that driving on an improved shoulder
requires more than the mere touching of the fog
line. The State urged in its petition for
discretionary review that touching the fog line does equate
to driving on the improved shoulder and argued that the court
of appeals erred to hold otherwise.
we generally limit our review to "'decisions' of
the court of appeals, " this is one of the
"exceptional case[s]" where, in the name of
judicial economy, we are able to, and will, dispose of the
case. There is no need to send this case
back to the court of appeals to look at it a third
time. The trial court thoroughly covered in
its written Findings of Fact and Conclusions of Law the
factual and legal issues related to the stop. The State
challenged the trial court's entire decision on appeal,
briefed all of the issues before the court of appeals, and
the court of appeals has twice upheld the trial court's
suppression order. We have kicked the can down the road
long enough. It is time that we dispose of the core issue
here, which is whether, under the totality of these
circumstances, the Trooper had an objectively reasonable
basis to stop Cortez's vehicle. We hold that he did not.
The record supports the conclusions reached by the trial
court. We affirm the judgment of the court of appeals.
MOTION TO SUPPRESS
motion to suppress hearing, the Trooper who pulled Cortez
over testified that he began following Cortez's minivan
down Interstate 40 because it had "a newer
registration" on it, and because it was "[a]
minivan, clean, with the two occupants in it:"
Q. So you're telling the Court that because you see a
van, it's clean and it's got two people in it, that
was [sic] indicators of potential criminal activity
A. Yes, sir, they are. . . . The Trooper testified that he
ultimately stopped the minivan because it had twice driven on
an improved shoulder in violation of Texas Transportation
Code, section 545.058(a). According to the Trooper, "on
two different occasions" he observed Cortez's
vehicle drive on the improved shoulder-when Cortez
"drifted across" the line when the Trooper was
driving next to Cortez in the left lane, and when Cortez
"came across the white stripe" when exiting the
suppression hearing, the State produced a video of the stop.
It was played for the trial court, and in response to several
questions on cross examination, the Trooper pointed out on
the video that Cortez crossed the white line: "[Y]ou see
him fade to the right-hand side, crossing the white
line;" "Casting a shadow, it completely crossed the
white line here;" "The tire crossed the line;"
"It is my testimony that he crossed the white line on
two different occasions;" "The white line
(indicating) the break in the white line-this is the fog
line. The vehicle crosses on two different occasions. Once,
being here; the second, being at the exit."
cross-examination, however, it became evident that the
Trooper believed that merely touching the fog line
constituted driving on the shoulder:
Q. Can you walk up to the board and show the court what you
claim to be a violation.
A. With my-with the naked eye, the camera doesn't show it
as greatly, but right here, he's on the-he's on the
white fog line right there.
Q. So you're saying that he's on the shoulder-driving
on the improved shoulder right now?
A. He's on the fog line right now, yes, sir.
A. The lane ends at the inside of that fog line.
Q. I'm sorry?
A. The lane-excuse me-the driving lane ends at that fog line.
Q. Where do you find that definition? If you're telling
the court that is the law, where do you find that definition
that the driving lane ends at the inside edge of a fog line?
A. It ends at the fog line.
Q. Where does the shoulder begin?
A. At the fog line.
Q. Which side of the fog line?
A. I say inside; you say outside.
Q. Do you have any law to support your stop, Officer?
A. Yes, sir, I do.
Q. Okay. What is that law that you're referring to? . . .
What law says where the shoulder begins?
A. There's not a law-I don't know, to my knowledge,
if there's a law that states where the exact lane ends.
Q. Okay. So you're not aware of a definition that says
this is what an improved shoulder is. Correct?
A. The improved shoulder is the edge of the roadway.
Q. The part that's on the other side of the line. Right?
A. Not in my interpretation.
granting Cortez's motion to suppress, the trial court
made the following findings and concluded that driving
on the fog line does not constitute crossing
over the fog line and into the shoulder:
• As [the Trooper's] vehicle approached and pulled
into the left hand lane, defendant's vehicle moved toward
the improved shoulder.
• A short time later, Defendant's vehicle moved
toward the improved shoulder a second time as the
Defendant's vehicle exited the Interstate to the right at
a marked exit ramp.
• The State produced no evidence that [the Trooper]
observed, or believed he had observed, any portion of the
Defendant's vehicle pass outside the outermost edge of
the fog line.
• The improved shoulder of a state roadway begins at the
point of the fog line which is furthest from the center of
• The defendant's vehicle did not cross outside the
outermost edge of the fog line onto the improved shoulder of
the roadway. Crossing over the portion of the fog line
nearest the center of the roadway or upon the fog line is not
a violation of Texas traffic law; therefore the vehicle was
not operated on the improved shoulder of the roadway on
either occasion made the basis for [the Trooper's]
affirming the trial court's suppression order, the court
of appeals agreed that simply touching the fog line does not
constitute driving on the shoulder.
heart of Cortez's motion to suppress is the Fourth
Amendment. The "touchstone of the Fourth Amendment is
reasonableness." The issue resolved by the trial court
and presented by the State on direct appeal is the issue that
we are addressing today-whether the Trooper's stop was
objectively reasonable. "A trial court's ruling on
a motion to suppress is reviewed on appeal for abuse of
discretion." We can sustain the trial court's
decision if we conclude that the decision is correct under
any applicable theory of law. A trial court's
ruling should be reversed only if it is arbitrary,
unreasonable, or "outside the zone of reasonable
disagreement." We use a bifurcated standard of
review to evaluate whether the totality of circumstances is
sufficient to support an officer's reasonable suspicion
of criminal activity. First, we "give 'almost total
deference to the trial court's determination of the
historical facts that the record supports, ' and second,
we review de novo the trial court's application
of the law to facts, which do not turn on credibility and
demeanor." Moreover, "we review de
novo whether the totality of circumstances is sufficient
to support an officer's reasonable suspicion of criminal
case involving an officer's stop must be evaluated
objectively, under the totality of the circumstances, to
determine whether the officer acted reasonably. "An
officer may make a warrantless traffic stop if the
'reasonable suspicion' standard is
satisfied.""Reasonable suspicion exists if
the officer has specific articulable facts that, when
combined with rational inferences from those facts, would
lead him to reasonably suspect that a particular person has
engaged or is (or soon will be) engaged in criminal
activity." We review a reasonable suspicion
determination by considering the totality of the
circumstances. When a police officer stops a
defendant without a warrant, the State has the burden of
proving the reasonableness of the stop at a suppression
hearing. Because Cortez was arrested without
a warrant, the State had the burden to prove that the initial
detention was legal.
It is not clear that Cortez's vehicle even
touched the fog line.
Transportation Code, section 545.058(a) provides that,
(a) 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;
(2) to accelerate before entering the main traveled lane of