Description: During the suppression hearing, Officer Marcos Johnson with the Austin Police
Department was the only witness to testify. The State also introduced a video recording from
Officer Johnson’s dashboard camera into evidence. Officer Johnson’s testimony described his
nearly seven years of experience in law enforcement and explained the training he received on the
Penal Code and the Traffic Code. Further, Officer Johnson testified that during the night in question
he was on patrol within his specific assigned area, where approximately ninety-five to ninety-nine
percent of his time on patrol was spent, and where he had previously conducted multiple traffic
stops. Officer Johnson described the area where the stop took place as being close to many shops
and having three lanes for traffic in each direction, as well as sidewalks and bike lanes. Officer
Johnson also testified that a significant number of traffic fatalities in Austin the previous year
involved vehicles striking cyclists or pedestrians.
Officer Johnson testified that around 11:38 p.m. on May 31, 2015, he pulled out onto
Slaughter Lane and noticed Reyna’s vehicle in front of him driving partially in the bike lane. He did
not immediately pull Reyna over, but he continued to follow Reyna’s vehicle and observed it cross
into the bike lane again. At this point, Officer Johnson turned on his traffic camera and lights and
subsequently used his siren intermittently to further alert Reyna to stop. In his testimony, Officer
The facts recited in this opinion are taken from the testimony and other evidence presented1 at the pre-trial hearing on Reyna’s motion to suppress. 2
Johnson explained that the purpose of the stop was Reyna’s commission of a traffic offense, in
violation of the Austin City Code of Ordinances section 12-1-21, driving in a bicycle lane.2
During cross-examination, Officer Johnson was asked about various boundaries of
the bike lane—specifically the “fog line” and the “physical barrier” —and at one point answered 3 4
that the bike lane and far right lane of vehicular traffic were separated by the physical barrier.
Officer Johnson also testified that officers had been told different things regarding physical barriers
but ultimately that the Transportation Code prohibits driving on physical barriers.
The dashboard camera video shows Officer Johnson’s police car pulling onto
Slaughter Lane and getting into the far right lane behind Reyna’s vehicle. The video shows a few
cars traveling in the opposite direction of Officer Johnson and Reyna but does not show any traffic
traveling in the same direction or any cyclists or pedestrians. Moreover, the video shows Reyna’s
vehicle veering out of its lane, crossing over the fog line and approaching the designated bike lane
on at least two occasions. Officer Johnson’s testimony also described traffic at that time of night
where the stop took place as “just a few cars now and then and pedestrians.”
After viewing the video and hearing Officer Johnson’s testimony and the arguments
of the parties, the trial court denied the motion to suppress.
Austin City Code of Ordinances section 12-1-21 provides: “a person may not drive a2 motor-propelled vehicle in, on, or across a bicycle lane . . . .” A fog line is the solid white line marking the boundary of a lane for vehicular traffic, also3 known as “the white shoulder line.” See Best v. State, No. 03-04-00818-CR, 2005 WL 1940018, at *1 (Tex. App.—Austin Aug. 10, 2005, pet. ref’d) (mem. op., not designated for publication). During cross-examination, Reyna’s counsel described the physical barrier as an intermittent4 painted section between the fog line of the far right lane of vehicular travel and the bike lane, marked by two parallel solid white lines with perpendicular white stripes in the middle. 3
STANDARD OF REVIEW
A trial court’s ruling on a pre-trial motion to suppress is reviewed under an abuse of
discretion standard. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011); Fernandez
Madrid v. State, No. 03-15-00796-CR, 2017 WL 875302, at *2 (Tex. App.—Austin Mar. 1, 2017,
no pet.) (mem. op., not designated for publication). A trial court abuses its discretion, and the
appellate court will reverse the trial court’s determination, if the trial court’s determination is outside
the zone of reasonable disagreement. Martinez, 348 S.W.3d at 922. The appellate court applies a
bifurcated standard of review, giving almost total deference to the trial court’s findings of historical
facts as well as to the resolutions of mixed questions of law and fact that rely upon the credibility
of a witness. Id. at 923. The appellate court conducts a de novo review of the application of the
trial court’s factual findings to the law, mixed questions of law and fact that do not rely upon the
credibility of witnesses, and pure questions of law. Id.
The appellate court views all of the evidence in the light most favorable to the trial
court’s ruling. State v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011). The prevailing
party is entitled to the strongest legitimate view of the evidence and all reasonable inferences
that may be drawn from that evidence. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim.
App. 2008). When, as here, the trial court does not make express findings of fact, the appellate
court infers the necessary factual findings that are supported by the record. Id.; Black v. State,
No. 03-15-00065-CR, 2016 WL 4429916, at *3 (Tex. App.—Austin Aug. 19, 2016, pet. ref’d)
(mem. op., not designated for publication). The trial court’s ruling on the motion will be upheld if
it is correct under any theory of law applicable to the case regardless of whether the trial court
based its ruling on that theory. Leming v. State, 493 S.W.3d 552, 562 (Tex. Crim. App. 2016);
Black, 2016 WL 4429916, at *3.
In his single issue on appeal, Reyna contends that the trial court abused its discretion
in denying his pre-trial motion to suppress because the stop initiated by Officer Johnson was not
supported by reasonable suspicion. Specifically, Reyna asserts that Officer Johnson did not have
reasonable suspicion that Reyna violated Austin City Code of Ordinances section 12-1-21 because
Reyna did not drive his vehicle in or near the bike lane.
The Fourth Amendment requires “a warrantless detention that amounts to less
than a full-blown custodial arrest” to be justified by reasonable suspicion. Derichsweiler v. State,
348 S.W.3d 906, 914 (Tex. Crim. App. 2011); see also Marrero v. State, No. 03-14-00033-CR,
2016 WL 240908, at *3 (Tex. App.—Austin Jan. 14, 2016, no pet.) (mem. op., not designated for
publication) (holding that police officer may lawfully stop automobile when that officer has
reasonable suspicion to believe that traffic violation has occurred). A police officer has reasonable
suspicion if he has “specific, articulable facts that, combined with rational inferences from those
facts, would lead him reasonably to conclude that the person detained is, has been, or soon will
be engaged in criminal activity.” Derichsweiler, 348 S.W.3d at 914. The reasonable suspicion
standard is objective and looks to the totality of the circumstances known to the officer at the time
he initiated the stop, while disregarding the actual subjective intent of the officer. Id.; Marrero,
2016 WL 240908, at *3 (stating that standard is not what omniscient officer would have seen, but
rather what reasonable officer would have done with what he actually did see).
Reyna suggests that a totality of the circumstances analysis is not applicable or
relevant. We disagree. The totality of the circumstances analysis is the touchstone of any reasonable
suspicion issue and the standard is not exclusive to instances of intoxication, but applies to an
officer’s reasonable suspicion of a traffic violation as well as other unusual or criminal activity.
See, e.g., Leming, 493 S.W.3d at 554-55, 563 (finding that totality of circumstances established
reasonable suspicion that defendant was intoxicated because even though circumstances may seem
innocent in isolation they may combine to suggest imminence of criminal conduct); Derichsweiler,
348 S.W.3d at 917 (noting that it is enough that totality of circumstances suggest realistic possibility
of criminal motive about to be acted upon in instance of unusual activity); Black, 2016 WL 4429916,
at *4 (determining that totality of circumstances established reasonable suspicion that defendant
committed traffic violation); see also Curtis v. State, 238 S.W.3d 376, 378-80 (Tex. Crim. App.
2007) (conducting totality of circumstances analysis while recognizing “as consistent with innocent
activity as with criminal activity” standard as not viable in reasonable suspicion analysis).
Instead, Reyna relies on his contention that the State failed to prove an actual
violation of Austin City Ordinance section 12-1-21. Cf. Black, 2016 WL 4429916, at *4 (noting that
defendant’s arguments were premised on idea that State failed to prove actual traffic violation by not
presenting evidence establishing each and every element of offense of disregarding barricade).
Reyna insists he did not commit a traffic violation because the testimony of Officer Johnson and the
corresponding video establish that, at most, Reyna briefly touched the physical barrier separating the
vehicular lane of travel from the bike lane. At a suppression hearing, however, the State is not
required to establish that a crime or traffic violation occurred prior to the investigatory stop. Leming,
493 S.W.3d at 561 (recognizing that proof of actual commission of offense is not required for any
investigative stop of any traffic infraction); see Derichsweiler, 348 S.W.3d at 916 (holding that
detaining officer is not required to pinpoint particular Penal Code infraction to form reasonable
suspicion). Rather, it is sufficient for the State to show that the officer reasonably believed that a
traffic violation or crime was in progress. See Leming, 493 S.W.3d at 561. “A traffic stop will be
deemed valid as long as a reasonable officer in the same circumstances as the detaining officer could
have stopped the suspected offense.” Marrero, 2016 WL 240908, at *3. Therefore, the issue is not
whether Reyna actually committed a traffic violation—be it the offense of driving in the bike lane
or any other traffic offense—but rather, the question is whether Officer Johnson had a reasonable
suspicion that Reyna committed a traffic violation when he initiated the stop. See Trevino v. State,
Nos. 03-14-00009-CR & 03-14-00010-CR, 2016 WL 463658, at *7 (Tex. App.—Austin Feb. 5,
2016, pet. ref’d) (mem. op., not designated for publication).
Because the trial court did not make express factual findings, we view the evidence
in the light most favorable to the trial court’s ruling and infer the necessary factual findings that are
supported by the trial court’s ruling. See Garcia-Cantu, 253 S.W.3d at 241. Based on the record,
we infer the following findings of fact that are relevant to the totality of the circumstances known
to Officer Johnson at the time he initiated the stop: Officer Johnson had served approximately four
years with the Austin Police Department and three years with the University of Texas Police
Department; the portion of Slaughter Lane where Officer Johnson observed Reyna’s vehicle was
within his assigned area for patrol, where he had previously conducted numerous traffic stops;
Reyna’s vehicle drove on and crossed over the fog line, approaching the bike lane on at least two
occasions; and a significant number of the traffic fatalities in Austin from the previous year were
instances of vehicles striking pedestrians and bicyclists. See Wiede v. State, 214 S.W.3d 17, 25
(Tex. Crim. App. 2007) (acknowledging that training, knowledge, and experience of law enforcement
officials are relevant to totality of circumstances). We also infer that the testimony given by Officer
Johnson is credible. See State v. Garrett, 22 S.W.3d 650, 654 (Tex. App.—Austin 2000, no pet.).
Moreover, Officer Johnson’s testimony that he observed Reyna approach the bike lane on two
separate occasions is supported by the dashboard camera video. Cf. Trevino, 2016 WL 463658, at
*6-7 (noting that footage from dashboard camera video was difficult to discern).5
Taking into account Officer Johnson’s knowledge of the significant number of traffic
fatalities involving pedestrians and cyclists struck by cars and his experience conducting traffic
stops within his designated area of patrol, along with the dashboard camera video corroborating his
testimony that Reyna veered out of his lane for vehicular travel and approached the bike lane, we
conclude that under the totality of the circumstances the traffic stop initiated by Officer Johnson was
supported by reasonable suspicion. Officer Johnson acted on specific observations that, based on
his reasonable interpretation of the law, led him to believe that he possessed sufficient information
that justified an investigation into whether Reyna had, in fact, violated the law. Cf. State v. Cortez,
The Court of Criminal Appeals recently recognized that “there is a difference between5 what an officer sees during an ongoing event and what [a reviewing court] sees when reviewing a video . . . . [A court] would be much closer to knowing what the officer observed if [the court] were to view the video only one time, from start to finish, without stopping. But even then, [the court] might not focus on what the officer focused on at the time of the stop.” Jaganathan v. State, 479 S.W.3d 244, 248 (Tex. Crim. App. 2015). Any ambiguity as to whether Reyna drove in, on, or across the bike lane created by repeated viewings of the dashboard camera video does not negate Officer Johnson’s conclusion that reasonable suspicion to initiate a traffic stop existed at the time he observed Reyna. See Trevino v. State, Nos. 03-14-00009-CR & 03-14-00010-CR, 2016 WL 463658, at *7 (Tex. App.—Austin Feb. 5, 2016, pet. ref’d) (mem. op., not designated for publication). 8
501 S.W.3d 606, 608-09 (Tex. Crim. App. 2016) (finding officer’s belief that defendant committed
traffic violation of driving on shoulder to be reasonable when defendant drove on fog line); Black,
2016 WL 4429916, at *4 (finding officer’s belief that defendant committed traffic violation of
disregarding barricade to be reasonable where, even though barricade did not completely extend
across lane defendant was driving in, barricade did extend well into that lane).
In light of the preceding, we conclude that the trial court did not abuse its discretion
by determining that Officer Johnson had reasonable suspicion to believe that Reyna committed a
traffic violation. See Black, 2016 WL 4429916, at *4; see also Bullock v. State, 426 S.W.3d 226,
229 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (stating that police officer may lawfully stop
and detain motorist who commits traffic offense).
For these reasons, we overrule Reyna’s sole issue on appeal.