DANIEL, BERNARD v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0037-22
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BERNARD DANIEL,
Appellant

v.

THE STATE OF TEXAS

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On State’s Petition for Discretionary Review
From the Third Court of Appeals
Bell County
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YEARY, J., filed a concurring opinion.

I agree with the Court that the officer’s dilemma in this case,
created by the conflict between the controlling precedent in the Third
Court of Appeals and this Court’s non-precedential decision in Leming
DANIEL – 2

v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016), should inure to the
benefit of the State and the officer’s decision to detain. In my view,
however, the Court should uphold the officer’s detention decision, not
because the officer made a reasonable mistake, but because, based on a
correct understanding of our statutory law, the officer did nothing
wrong—at all. Neither he nor the State should be unfairly punished for
their allegiance and adherence to the very clear laws that were passed
by our Legislature to guide the judgment of law enforcement in cases
like this one. The way I see it, the officer’s judgment was good, and he
might have saved lives.
The State was correct to argue that the officer’s dash-cam video
“showed ‘a very clear failure to maintain a single lane during a left turn,’
and that this was ‘a clear violation of the law.’” Majority Opinion at 3.
In light of that, the officer’s decision to detain and investigate was
entirely reasonable. So, I ultimately agree with the Court that the trial
court’s judgment in this case should be affirmed, and the court of
appeals’ judgment should be reversed, albeit for a different reason than
the Court’s.
But this case illustrates how this Court’s recent opinion in State
v. Hardin was both wrong and highly problematic. See 664 S.W.3d 867
(Tex. Crim. App. 2022). It has mandated adherence to a clearly
erroneous interpretation of our statutory law. Contrary to the opinion of
the Court in Hardin, the offense for which the officer initiated a traffic
stop in this case does not require evidence that the movement by the
vehicle could not be made safely.
Established in Section 542.301(a) of the Texas Transportation
DANIEL – 3

Code, the language of the offense at issue in this case, and also at issue
previously in Hardin, provides that:
(a) A person commits an offense if the person performs an
act prohibited or fails to perform an act required by this
subtitle.

TEX. TRANSP. CODE § 542.301(a) (all emphasis added). This formulation,
to me, clearly establishes two distinct potential offenses: (1) commission
of an act prohibited by “this subtitle,” and (2) failure to comply with a
requirement of “this subtitle.” Then, separately, Section 545.060(a) of
our Transportation Code, which is a part of the same “subtitle” as section
542.301(a), establishes both a requirement and a prohibition, either of
which—according to my view—might constitute discrete offenses under
Section 543.301(a). 1 Specifically, Section 545.060(a) provides:
(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 § 545.060(a).
Thus, to me and, I hope, to other readers of plain English as well
(though clearly not enough to win the day in Hardin, or in this case),
Section 545.060(a) identifies two discrete ways in which a person might
commit an offense pursuant to the provisions of Section 543.301(a): (1)
by failing to drive as nearly as practical entirely within a single lane, or,

1 Sections 542.301 and 545.060 are both located within Title 7, Subtitle

C, of the Texas Transportation Code, which is called “Rules of the Road[.]”
DANIEL – 4

separately and distinctly, (2) by moving from a lane when that
movement cannot be made safely. See Hardin, 664 S.W.3d at 885–89
(Tex. Crim. App. 2022) (Yeary, J., dissenting). This means that if
Appellant drove his vehicle on the roadway, and he failed to “drive as
nearly as practical entirely within a single lane[,]” then Appellant failed
“to perform an act required” by a statute found within Title 7, Subtitle
C, of the Texas Transportation Code. The safety of the action is not a
consideration. And it also means that if the officer who detained him
developed a reasonable suspicion that Appellant violated the law in that
way, the officer was justified in detaining Appellant to investigate
whether he committed an offense.
I am sure that the members of this Court who joined Hardin agree
with it and are convinced that it is correct. But I could not join that
opinion because I am convinced that it represents the application of
some kind of judicial philosophy other than an originalist textualism,
which I believe to be the best way for courts to read legislative
enactments in our constitutional form of government. It still seems to
me that the Court, in Hardin, by failing to simply accept the plain and
intelligible language of the statutes at issue there, has re-written our
law rather than simply accepting it as it was written. See id. at 885
(Yeary, J., dissenting). Consequently, in my view, Hardin should just be
overruled as quickly as possible. See id. at 885–89 (Yeary, J.,
dissenting).
Some may be disturbed that an officer might be justified in
detaining a person on the roadway after having merely developed a
reasonable suspicion that the person has failed to “drive as nearly as
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practical entirely within a single lane” in an automobile. 2 It is true that
it is sometimes difficult to stay even “as nearly as practical” entirely
within the lanes on a roadway. But driving an automobile in this State
is a privilege reserved for people who take seriously the danger that
automobiles may pose to themselves and to the rest of our population.
Burg v. State, 592 S.W.3d 444, 449 (Tex. Crim. App. 2020) (“Appellant
does not have any right to be free from a license suspension given that
the act of driving is a privilege not a right.”).
According to the Texas Department of Transportation, there were
4,481 deaths due to accident on Texas roadways in 2022. 3 Of those, 1,163
deaths were caused in crashes in which a driver was under the influence
of alcohol. 4 One person was killed on Texas roadways every one hour

2 Cf. State v. Cortez, 543 S.W.3d 198, 206 (Tex. Crim. App. 2018) (“As

the court of appeals pointed out, ‘[d]riving is an exercise in controlled weaving.
It is difficult enough to keep a straight path on the many dips, rises, and other
undulations built into our roadways.’ Even a driver who is sober, alert, and
careful may occasionally drift within their lane only because the roadway
surface is not perfectly smooth. Moreover, drivers are not able to see if their
tires are touching the fog line. They are likely to veer over at some point and
touch the fog line alongside the roadway without being aware they have done
so. Some lane boundaries have raised reflective pavement markers or road
grooves in the asphalt, rather than painted lines, to alert drivers when they
are veering too close to another lane or are about to cross over into the
shoulder. Sometimes these road grooves are on the fog line, sometimes they
are alongside the outer edge of the painted fog line. Thus, we choose to evaluate
the totality of the circumstances in this case to determine the reasonableness
of the Trooper’s stop.”).

3 TEX. DEP’T OF TRANSP., TEXAS MOTOR VEHICLE TRAFFIC CRASH FACTS

(2022), https://ftp.txdot.gov/pub/txdot-info/trf/crash_statistics/2022/01.pdf.

4 Id.
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and 57 minutes. 5 Also, one person was injured on Texas roadways every
one minute and nine seconds. 6 And law enforcement officers are charged
with the difficult duty to enforce our traffic laws and to find and detain
individuals who are impaired and remove them from the roadway.
Officers who correctly read, understand, and enforce laws like the
one at issue in this case—laws that are clear and unambiguous, but
which are nevertheless misconstrued by the courts—should never be
penalized for enforcing the law as it is written by our Legislature. But
this Court’s opinion in Hardin will, eventually, cause that to happen,
along with other anomalous and possibly even tragic results. 7
Sometimes even judges (myself included) make mistakes. But the
laws at issue in Hardin, and in this case, do not say what this Court said
they do. The Court was wrong to construe those statutes the way it has.

5 Id.

6 Id.

7 In my dissent in Hardin, I pointed out some anomalies that might

present themselves under the Court’s misconstruction of the statutes at issue
there. Those same statutes are at issue here. But the facts of this case bring to
mind still other, far more tragic possible consequences. For example, in this
very case, the Court admits that Appellant had a blood alcohol content of .174.
Majority Opinion at 2. The Court also concedes that, “[b]ased on his criminal
history, and the events of that morning, Appellant was indicted for felony
driving while intoxicated.” Id. (emphasis added). And Appellant was
eventually convicted for his conduct in this case, presumably upon proof
satisfying the beyond-a-reasonable-doubt standard. Id. at 3. If, instead, the
officer in this case would have followed this Court’s misconstruction of the law,
as described in Hardin, he might have waited to detain Appellant until such
time as Appellant’s car came near other vehicles on the road. And during that
extra time before detention, Appellant might have been involved in a single car
accident and been injured or killed. The Court should take the opportunity
presented by this case, today, and without delay, to simply overrule its
mistaken, and clearly erroneous, opinion in Hardin.
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And the Court was also wrong to say that reading the statutes at issue
here the right way—the way I have suggested—would render the
statutes unconstitutional. Hardin, 664 S.W.3d at 875. It most certainly
would not.
The officer in this case read and understood those laws correctly.
He should be honored for having followed their dictates as written. He
should not be made to beg—via a prosecutor’s invocation of the exception
established by the United States Supreme Court’s opinion in Heien v.
North Carolina, 574 U.S. 54 (2014)—to be excused from the extra-
textual mandates erroneously imposed by this Court alone. See, e.g.,
State’s Brief at 11 (citing Heien, 574 U.S. at 61). I respectfully concur
only with the result reached by the Court’s opinion.

FILED: February 14, 2024
PUBLISH