COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO.  2-06-183-CR

 CHAD AVERY FOWLER           APPELLANT

 V.

 THE STATE OF TEXAS STATE

            FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

                              OPINION                             

 The question in this DWI case is whether a police officer has probable cause or reasonable suspicion for a traffic stop when the officer observes the  the tires of the defendant=s vehicle cross into an adjacent same-direction lane by a tire=s width a single time when there is no other traffic in the area.  We answer Ano@ and reverse the trial court=s judgment.

                                            Background           

On July 23, 2005, a little after midnight, Officer Patrick Knotts of the Mansfield Police Department was driving directly behind Appellant=s pick-up truck on Debbie Lane, a four-lane road divided by a median.  Officer Knotts testified that he observed the truck cross into an adjacent same-direction lane by a tire=s width and that the truck drifted within its lane two more times, touching the white line between the lanes.

Officer Knotts immediately initiated a traffic stop, and Appellant pulled into a private driveway.  According to Officer Knotts, when he asked Appellant for his license and insurance information, Appellant acted strange, seemed disoriented, and fumbled through his camera bag before pulling his wallet from his shorts pocket.  Officer Knotts also noticed that Appellant=s eyes were red, glassy, and bloodshot.  Appellant had a hard time concentrating and did not properly respond to Officer Knotts=s questioning.  Appellant told Officer Knotts that he had consumed one twelve-ounce Keystone beer about an hour prior to the stop.  However, Officer Knotts found an open twelve-ounce Keystone beer in the front passenger seat of Appellant=s truck, and the can was cold to the touch. 

Officer Knotts asked Appellant to perform some field sobriety tests.  On the horizontal gaze nystagmus test, Officer Knotts observed a lack of smooth pursuit in both eyes and four out of the six nystagmus clues.  Appellant then failed to maintain the mandated stance in the walk-and-turn test.  He stated that he could not perform the test because he was tired and refused to continue the field sobriety tests all together.  Appellant also refused to take a breath test.  Officer Knotts arrested Appellant for DWI due to the loss of use of his mental and physical faculties.  

Appellant sought to suppress all evidence from the traffic stop.  The trial court held a hearing on his motion to suppress after jury selection but before the presentation of evidence.  At the conclusion of the hearing, the trial court denied Appellant=s motion to suppress.  A jury convicted Appellant of DWI and sentenced him to twenty-five days= confinement and a fine of $650.  This appeal followed.

                                             Discussion

In two points, Appellant argues that the trial court erred in denying his motion to suppress because Officer Knotts had no probable cause or reasonable suspicion to justify the initial traffic stop.  The State argues that Officer Knotts had reasonable suspicion that Appellant had violated section 545.060(a) of the Texas Transportation Code.   

1.                  Standard of Review

Generally, we review a trial court=s ruling on a motion to suppress evidence under a bifurcated standard of review.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  In reviewing the trial court=s decision, we do not engage in our own factual review.  Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.CFort Worth 2003, no pet.).  The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).  Therefore, we give almost total deference to the trial court=s rulings on (1) questions of historical fact, even if the trial court=s determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application‑of‑law‑to‑fact questions that turn on an evaluation of credibility and demeanor.  Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652‑53 (Tex. Crim. App. 2002); State v. Ballman, 157 S.W.3d 65, 68 (Tex. App.CFort Worth 2004, pet. ref=d).  But when the trial court=s rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court=s rulings on mixed questions of law and fact.  Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652‑53.  The historical facts in this case are not disputed; therefore, we review the ruling on the motion to suppress de novo.  See Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).

2.                  Suppression Hearing Testimony

Officer Knotts was the State=s only witness at the suppression hearing.  He testified, in relevant part, as follows:

Q.  Okay.  And around 12:25 a.m., did you observe anything out of the ordinary?

 

A.  I observed a white vehicle commit -- a white truck commit a traffic violation, and it caught my attention.

 

Q.  Okay.  And what was that traffic violation?

 

A.  Failed to drive in a single lane of traffic.

 

Q.  Okay.  Could you describe for the Judge exactly how the vehicle failed to maintain a single lane of traffic?

 

A.  Sure.  The vehicle was observed traveling eastbound on Debbie Lane.  It crossed the white line, approximately a tire=s width, and then it drifted over and touched the white line two more times.

. . . .

 

Q.  And you also testified the sole reason why you stopped that vehicle was for failure to maintain a single lane of traffic.

 

A.  That=s correct.

 

Q.  You also testified that you observed the vehicle cross over the white line one time, approximately a tire=s width --

 

A.  Correct.

 

Q.  -- and then drift within its lane two other times --

 

A.  And touch the white line.

 

Q.  -- and touch the white line.  Okay.

 

. . . .

 

Q.  Do you recall what block number that was, approximately?

 

A.  The violation was in the 100 block.

 

. . . .

 

Q.  And where did you effectuate the traffic stop?

 

A.  The vehicle stopped in the 200 block of Debbie, East Debbie.

 

Q.  So approximately a one-block period?

 

A.  Correct.

 

. . . .

 

Q.  So nothing was dangerous about moving over that line?

 

A.  No vehicles were almost struck, so, no.

 

. . . .

 

Q.  Okay.  Could you tell the Court the Transportation Code definition of Afailure to maintain a single lane@?

 

A.  If vehicles do not -- the vehicle has to travel within the lane of traffic; then, if it=s going to change lanes, it needs to signal that lane-change.  He never signaled any lane-change, so that would be what I based the traffic stop off of.

 

Q.  And that=s your understanding of the Transportation Code definition?          

 

A.  Failure to maintain a single lane of traffic while operating a motor vehicle.

 

Q.  Okay.  Did the vehicle commit any other traffic violations other than crossing that line one time?

 

A.  No.

 

Q.  Did you observe any incident that came close to causing an accident or was unsafe, in any manner, in that regard?

 

A.  No.

 

Officer Knotts also testified that there was not a vehicle in the adjacent lane when Appellant=s tires crossed the line and that his vehicle did not strike the curb when it crossed the line.

 

 

3.                  Reasonable Suspicion

In his second point, Appellant argues that Officer Knotts illegally seized him by stopping him without reasonable suspicion that he was, had been, or soon would be engaged in criminal activity.  We will consider this point first because if the stop was unjustified by reasonable suspicion, then it was also unjustified under the more stringent standard of probable cause.  See Klare v. State, 76 S.W.3d 68, 75 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).

The Fourth Amendment protects against unreasonable searches and seizures.  U.S. Const. amend. IV.  To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct.  Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).  A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant.  Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492.  Once the defendant has made this

 showing, the burden of proof shifts to the State, which must then establish that the government agent conducted the search or seizure pursuant to a warrant or that the agent acted reasonably.  Torres, 182 S.W.3d at 902; Ford, 158 S.W.3d at 492.

The Supreme Court has held that a detention is reasonable under the Fourth Amendment if the government agent reasonably suspects a person of engaging in criminal activity.  Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (196 ; Carmouche, 10 S.W.3d at 328.   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 the officer to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity.  Ford, 158 S.W.3d at 492B93.  This 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. at 492.

 

a.                   Section 545.060(a) of the Texas Transportation Code

Officer Knotts testified that he stopped Appellant because he observed Appellant failing to maintain a single lane of traffic.  The relevant provision of the transportation codeCsection 545.060(a)Cprovides as follows:

(a)        An operator on a roadway divided into two or more clearly marked lanes for traffic:

 

(1)        shall drive as nearly as practical entirely within a single lane; and

 

(2)        may not move from the lane unless that movement can be made safely. 

 

Tex. Transp. Code Ann. ' 545.060(a) (Vernon 1999) (emphasis added).

Although the statute has two subparts, it does not create two separate offenses, but rather only one: moving out of a marked lane when it is not safe to do so.  Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.CAustin 1998,  pet. ref=d).  In Hernandez, the Austin court analyzed the legislative history of section 545.060 and determined that because neither section 545.060 nor its predecessor created two offenses, the words Aunless that movement can be made safely@ necessarily modify both subsections, adding,

he very vagueness of the requirement that the operator of a vehicle drive within a single lane Aas nearly as practical@ indicates that the legislature did not intend for the initial clause of the statute to create a discrete offense apart from some element of unsafety. This conclusion is bolstered by the use of the term Apractical@ rather than Apracticable.@ The latter term has a somewhat more definite meaning: Acapable of being accomplished; feasible; possible,@ while the former term is more ambiguous: Amanifested in practice; capable of being put to good use.@ Bryan A. Garner, A Dictionary of Modern Legal Usage 678 (2d ed.1995).

 

Id.

Thus, the Hernandez court held that a vehicle=s slow drift until two of its tires crossed into another same-direction lane, at an hour when there were few other cars about, did not give rise to a reasonable suspicion of criminal activity because the State presented no evidence that the driver=s failure to drive in a single lane was unsafe or dangerous.  Id. at 869B70, 872.  Many other courts have reached the same conclusion under similar facts.  See, e.g., State v. Huddleston, 164 S.W.3d 711, 713B14 (Tex. App.CAustin 2005, no pet.) (holding officer lacked reasonable suspicion of violation of section 545.060 when he saw car slowly drift over fog line by a few inches five times over five to six miles while traveling one to eight miles per hour under speed limit); Eichler v. State, 117 S.W.3d 897, 898 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (holding no reasonable suspicion when car crossed line between middle and fast lanes once on interstate highway in light traffic at 12:30 a.m.); Bass v. State, 64 S.W.3d 646, 649

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Thursday, October 23rd 2008

1:10 PM

Immigration Updates

Ina precedent decision issued today, the Board of Immigration Appeals has overturned the Immigration Judge in Los Angeles, and ordered that in order to qualify for a waiver of inadmissibility, the qualifying relative must be living.  This ruling is despite the fact that the Respondent's mother, his qualifying relative, was alive during the nearly twenty years prior to the Immigration Judge's grant of the waiver; but died the year before the waiver was approved.

 

Cite as 24 I&N Dec. 661 (BIA 200 Interim Decision #3627

661

Matter of Rolando Manapa FEDERISO, Respondent

File A040 501 894 - Los Angeles

Decided October 23, 2008

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

To be eligible for a waiver of removal under section 237(a)(1)(H)(i) of the Immigration

and Nationality Act, 8 U.S.C. § 1227(a)(1)(H)(i) (2006), an alien must establish a qualifying

relationship to a living relative.

FOR RESPONDENT: Andrew J. Vazquez, Esquire, Pasadena, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jessica Mufarreh, Assistant

Chief Counsel

BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.

PAULEY, Board Member:

In a decision dated July 28, 2006, an Immigration Judge granted the

respondent’s request for a waiver of removal under section 237(a)(1)(H)(i) of

the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H)(i) (2006). The

Department of Homeland Security (“DHS”) has appealed from that decision.

The appeal will be sustained, the decision of the Immigration Judge will be

vacated, and the respondent will be ordered removed from the United States.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the Philippines. The record

reflects that he was admitted to the United States as a lawful permanent

resident on November 8, 1986, on the basis of his first-preference

classification as the unmarried son of a United States citizen. It further

indicates that he was married at the time of his admission. The respondent’s

mother, who was a United States citizen, died in 2005.

Removal proceedings were initiated against the respondent in January 2001.

The Notice to Appear (Form I-862) charged that the respondent is removable

under section 237(a)(1)(A) of the Act because he was inadmissible at the time

Cite as 24 I&N Dec. 661 (BIA 200 Interim Decision #3627

662

of entry under sections 212(a)(5)(A)(i), (6)(C)(i), and (7)(A)(i)(I) of the

Act, 8 U.S.C. §§ 1182(a)(5)(A)(i), (6)(C)(i), (7)(A)(i)(I) (2000). During

proceedings on August 3, 2001, the Immigration Judge denied the DHS’s

motion for a continuance and granted the respondent’s motion to terminate.

The DHS appealed, and on December 8, 2003, we sustained the appeal and

remanded the record for the proceedings to be reinstated. At the proceedings

on remand, the Immigration Judge found the respondent removable as charged

but granted his request for a waiver under section 237(a)(1)(H) of the Act. On

appeal, the DHS contends that the respondent is statutorily ineligible for the

waiver because he no longer qualifies as the son of a United States citizen

following the death of his mother.

II. ANALYSIS

Section 237(a)(1)(H)(i) of the Act provides a waiver of removal for

certain aliens who were inadmissible at the time of admission under section

212(a)(6)(C)(i) because they sought documentation or admission by fraud or

willful misrepresentation of a material fact. The statute currently provides, in

pertinent part, as follows:

The provisions of this paragraph relating to the removal of aliens within the

United States on the ground that they were inadmissible at the time of admission as aliens

described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion

of the Attorney General, be waived for any alien (other than an alien described in

paragraph (4)(D)) who –

(i) (I) is the spouse, parent, son, or daughter of a citizen of the United States or of

an alien lawfully admitted to the United States for permanent residence; and

(II) was in possession of an immigrant visa or equivalent document and was

otherwise admissible to the United States at the time of such admission except for

those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of

section 212(a) which were a direct result of that fraud or misrepresentation.

Section 237(a)(1)(H) of the Act (emphasis added). Thus, only an alien who

“is the spouse, parent, son, or daughter of a citizen of the United States or of

an alien lawfully admitted to the United States for permanent residence” may

be eligible for this waiver. Section 237(a)(1)(H)(i)(I) of the Act. The

respondent claims that he is eligible because he is the son of a United States

citizen, even though his mother is now deceased.

The DHS argues that a person can qualify as the son of a United States

citizen only if the citizen parent is living. The respondent, on the other hand,

focuses his argument on a comparison to the waiver of inadmissibility under

section 212(i) of the Act, which requires a showing of hardship to the

qualifying relative. He asserts that because section 237(a)(1)(H) has no such

Cite as 24 I&N Dec. 661 (BIA 200 Interim Decision #3627

663

requirement, only the existence of the relationship to the qualifying relative

must be shown and the parent need not still be living. Upon review of the

history of section 237(a)(1)(H), we conclude that the Immigration Judge erred

in finding the respondent eligible for a waiver and we will sustain the DHS’s

appeal.

The first origins of the fraud waiver appeared in 1957 when Congress

created a provision that excused the deportation of an alien who was

excludable at the time of entry on the basis of fraud or misrepresentation and

who was a “spouse, parent, or child of a citizen of the United States” or a

lawful permanent resident. See Act of Sept. 11, 1957, Pub. L. No. 85-316, § 7,

71 Stat. 639, 640; see also Matter of Slade, 10 I&N Dec. 128, 131 (BIA 1962).

In 1961, Congress enacted the waiver provisions of former section 241(f) of

the Act, 8 U.S.C. § 1251(f) (1964). See Act of Sept. 26, 1961, Pub. L. No.

87-301, § 16, 75 Stat. 650, 655. The waiver of deportation, which was

mandatory at that time, again contained the requirement that the applicant must

qualify as a “spouse, parent, or child.” A subsequent amendment to former

section 241(f) rendered the waiver discretionary, but the qualifying relative

requirement remained the same. See Immigration and Nationality Act

Amendments of 1981, Pub. L. No. 97-116, § 8, 95 Stat. 1611, 1616.

When section 241(f) was repealed and the statute was renumbered in 1990,

the wording regarding qualifying relatives was also amended to replace a

“child” with a “son, or daughter,” thereby eliminating the age restrictions

associated with the term “child.” See former section 241(a)(1)(H) of the Act,

8 U.S.C. § 1251(a)(1)(H) (1994); see also Immigration Act of 1990, Pub. L.

No. 101-649, §§ 602(a), (b), 104 Stat. 4978, 5079, 5081; section 101(b)(1) of

the Act, 8 U.S.C. § 1101(b)(1) (2006). The wording regarding qualifying

relatives was preserved again when Congress revised the statute to change the

deportation provisions to grounds of removal and accordingly renumbered

former section 241(a)(1)(H) of the Act as section 237(a)(1)(H). See Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Div. C of

Pub. L. No. 104-208, § 305(a)(2), 110 Stat. 3009-546, 3009-598.

Congress has employed essentially identical language in regard to the

qualifying relative requirement since the inception of the fraud waiver, and the

meaning of that requirement of the statute has remained the same throughout

its history. We therefore find it appropriate to consider the case law that has

developed regarding the waiver in deciding the question before us.

In INS v. Errico, 385 U.S. 214, 224 (1966), the Supreme Court noted in

regard to the earliest version of the waiver that “ he fundamental purpose of

this legislation was to unite families.” Citing that decision, we stated the

following in Matter of Da Lomba, 16 I&N Dec. 616, 617-18 (BIA 197 :

“The intent of Congress in enacting section 241(f) was a humantarian [sic]

Cite as 24 I&N Dec. 661 (BIA 200 Interim Decision #3627

1 We note that in Kalezic v. INS, supra, the court found that the operative date was the date

of the Immigration Judge’s decision. In this case, the respondent’s mother died before the

Immigration Judge’s decision. Thus, we have no occasion to opine on the correctness of this

aspect of Kalezic.

664

desire to unite families and preserve family ties. The fundamental purpose for

such legislation was to forestall deportation where it would break up a family

composed in part of United States citizens or lawful permanent residents.” See

also Matter of Matti, 19 I&N Dec. 43, 46 (BIA 1984).

In Chung Wook Myung v. District Director of the U.S. INS, 468 F.2d 627,

628 (9th Cir. 1972), the United States Court of Appeals for the Ninth Circuit

held that an alien was not eligible for a waiver under former section 241(f) of

the Act because his wife and United States citizen child resided in Korea. The

court concluded that granting him a waiver would contravene the purpose of

the statute, which was to promote family unity with his United States citizen

child.

Similarly, in Kalezic v. INS, 647 F.2d 920 (9th Cir. 1981), the Ninth Circuit

sustained an Immigration Judge’s decision denying relief where the alien’s

marriage was effectively over several months before the decision was

rendered. The court noted that the marital relationship had ended in divorce

before the alien’s deportation and found that to grant him a waiver under these

circumstances would defeat the purpose of the statute, which was to allow

spouses to remain together in this country. Id. at 922-23 (“It is the ‘family

unit’ that [section 241(f)] seeks to preserve. Presently no such unit exits.”).

We agree that the statutory language clearly supports the view that an existing

relationship to a living relative is required for waiver eligibility in the case of

a spouse. We find no basis in the statute to treat a parent, son, or daughter

differently.

It is clear from the language of the statute and its interpretation by the courts

and this Board that the purpose of the fraud waiver is to unite aliens with their

living United States citizen or lawful permanent resident family members.

Because his mother is deceased, the respondent does not have a qualifying

relative with whom to remain in the United States. We therefore find that he

cannot establish his eligibility for a waiver under section 237(a)(1)(H)(i)(I) of

the Act, and that the Immigration Judge erred in granting the waiver.1

Accordingly, we will sustain the DHS’s appeal, vacate the Immigration

Judge’s decision, and order the respondent removed from the United States.

ORDER: The appeal of the Department of Homeland Security is sustained.

FURTHER ORDER: The decision of the Immigration Judge is vacated.

FURTHER ORDER: The respondent is ordered removed from the

United States to the Philippines.

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