Ford v. State

fectively prevails’ Article statutory require over 4.08.”9 construction that all the provisions given easily effect. This is questions The can State how there be a 44.01(a) naturally done. Article allows trial appeal- de novo cases which it is appeal the State to certain orders. Arti- justice rulings grant- court’s which cles and 45.042 that appeals 4.08 establish ed the defendants’ motions to dismiss the justice from a court must be taken to the complaint. It queries, “Is the trial de novo county court. Articles 44.17 and 45.042 upon complaint justice to be that the specify appeal county that an court shall previously court had dismissed—in which be conducted de novo. If the State takes justice ruling case the court’s on the defen- an appeal proceeding after such de novo ig- dant’s motion to dismiss would be 44.01(f) court, county in the Article means nored?” and the trial “Is de novo to be appeal given that that shall be precedence complaint another or an amended appeals. the court of complaint right which case the State’s —in justice to appeal ruling court’s would judgment We affirm the of the Court of have been abrogated?” Appeals. The answer to the State’s first rhetorical is, question Yes. A trial de on a novo

complaint justice that a court dismissed justice ignore ruling. would That is what Article 44.17 means when it

says “the trial shall novo in be de court, county if same as prosecution had originally been com- FORD, Appellant, Matthew

menced in that court.” argues The State article 44.01(f) “contemplates appeal that a State’s The of Texas. STATE brought under that statute will be heard 44.01(f) by the court of appeals.” Article No. PD-1946-03. provides appeals that “The court of shall give precedence appeal in its docket to an Appeals Court of Criminal of Texas. (a) (b) filed under Subsection or of this March pro- article.” The State contends that this precedence vision ap- about court of

peals’ dockets means that of appeals courts jurisdiction every filed un- appeal (a) (b).

der subsection language weight the statute will not of that bear the inference. 44.01(f) speaks only

Article precedence appeals of which the court of

appeals jurisdiction. has It cannot be read jurisdiction, to create or to assume the jurisdiction existence of a that is not else granted. principles where The basic Alley, supra note 3

OPINION

KEASLER, J., delivered MEYERS, PRICE, the Court which JOHNSON, HERVEY, HOLCOMB, , JJ., joined. evidence,

In a suppress motion to Ford initial for fail- asserted his detention proper following ure to maintain a distance supported by was not suspicion. The trial court overruled motion. Ford’s of appeals stop The court held the by concluding valid that the evidence was sufficient to establish reasonable Having found the record devoid of to support articulable facts the officer’s conclusion, we reverse. History

I. Factual and Procedural Trooper Peavy Texas Andrew State for pulled Matthew Ford’s vehicle over closely High- another car too way 290 outside Houston violation of 545.062(a). § Transportation Texas Code 545.062(a)provides, Section shall, An if operator following another vehicle, maintain an clear assured dis- that, tance between the two vehicles so vehicles, considering speed traffic, high- and the conditions of the way, safely can operator with- colliding preceding out with the vehicle vehicle, object, or veering into another highway.1 or near the person on passenger-side Ford lowered his When window, Peavy strong noticed a odor of li- marijuana. Peavy took Ford’s driver’s patrol cense and returned to his car to run on Ford’s license and to issue a check the traffic violation. He warning ticket for approached again the car and asked Ford Wice, Houston, Brian for appellant. W. initially refused to exit his vehicle. Ford Cornelius, Shirley Assistant District At- Peavy’s request permission for to search Houston, Paul, torney, Peavy car. that while he was Matthew State’s testified Austin, to a Attorney, waiting backup for State. Ford consented 545.062(a) (Vernon Supp.2004). Transp. 1. Tex. Code Ann. trooper ar- After another state

search. rived, Peavy conducted a search of Ford’s approaching Q: you And when were con- Peavy’s produced search a bottle car. vehicle, your inten- what were codeine, con- and another bottle taining you approached the ve- before tions mixed with soda. Ford taining codeine hicle? then under arrest. placed When his violation he A: talk to about To not discover the source of the could had committed. odor, marijuana requested he the assis- is that? Q: violation Which unit. The canine unit’s tance of a canine Following too close. A: marijuana in grams of search revealed 55 only testi- portion was the quoted This the car’s console. describing the cir- mony by Peavy given indicted for felo- subsequently Ford was being leading up to Ford cumstances codeine, ny of a controlled sub- possession testimony no There was other stopped. stance, Ford weighing grams. at least driving. Peavy’s testi- relevant to Ford’s chal- suppress filed a motion to evidence that he was a certi- mony also established the reason- lenging, among things, other serving Department the peace fied officer required for the initial de- suspicion able enforcing years for four of Public Service hearing, the suppression tention. At the laws. The remainder traffic and criminal Peavy, testimony trial court heard from of testimony of focused on the search his responded Peavy’s the re- officer who Ford consent- Ford’s vehicle and whether quest back-up, and Ford himself. also testified at the ed to the search. Ford only testimony Peavy, the officer whose Although he testi- hearing. suppression surrounding stop, related to the facts the in” “squeezed a car between fied that leading up testified to the events the him, Ford the car in front of car and stop: following that he was not too close. stated Q: on of 2001 did September And 2nd Concluding sup- that the traffic was you something caught that notice suspicion, the trial ported your eye night? 5:47 at around suppress. motion to judge denied Ford’s Yes, patrolling A: ma’am. I and I pled guilty plea agreement, Under a Ford utility a maroon vehicle follow- saw second-degree felony posses- to a reduced patrol- too close behind—I was charge. The of a controlled substance sion ling 290 westbound. I saw a ma- adjudication placed and court deferred Chevy utility roon GMC or vehicle probation years for nine Ford car, following a white too appealed fine. Ford $500 close. denying his motion. order Q: you you And where were when no- this

ticed vehicle? Appeals II. Court him. directly A: I was behind Appeals overruled Ford’s The Court Q: you And at the time that noticed and found that in point of error

this, you what did do? suppression at presented evidence deny- trial court did not err my emergency hearing, I over- A: activated suppress.2 The court pulled over. the motion heads and the vehicle State, 01-02-00643-CR, pet. granted). slip op. [1st Dist.] Houston 2. Ford v. No. (Tex.App. at *3 2003 WL “Trooper Peavy’s experience stated that pursu- the search or seizure was conducted training qualified and judg- to make a ant to a warrant or was reasonable.7 whether, speed ment on ‘considering vehicles, traffic and the conditions of case, suppression In this hear highway,’ the car [Ford] ing began stipulating with the State closely.”3 in front of him too The court this case involved a warrantless arrest. “Peavy stated testified that he saw [Ford] stipulation Because the shifted the burden following another car at a distance proof at whether Ford thus, Peavy believed was insufficient tempted refute the existence of suffi in violation of the statute.” court cient is irrelevant to the reason stated that the trial court was entitled to able-suspicion analysis. Contrary to both believe the officer’s while dis- appeals’s the court of and the dissent’s counting testimony. Ford’s The court ad- position, charged Ford with the ditionally Peavy’s reasoned that determi- responsibility challenging whether nation that Ford had violated section specific warranting had facts 545.062(a) unchallenged sup- “went at the detention. The State bore the burden of

pression hearing.” illustrating In further establishing the reasonableness of the war- point, highlighted the court Ford’s rantless detention.8 failure to “press Trooper Peavy on what might factors have led to make the determination that [Ford] Suspicion Reasonable closely” “attempt

too to discredit An conducts a tem officer lawful Peavy’s expertise or qualifications make 4 porary detention when he has reasonable such a determination.” an suspicion to believe that individual is Analysis III. violating the law.9 Reasonable exists if the officer has articulable Burden of Proof that, facts when with rational combined suppress To evidence on an al facts, inferences from those would lead violation, leged Fourth Amendment the de reasonably particu that a conclude fendant bears the initial of produc burden been, is, person actually lar has or soon that presumption evidence rebuts the activity.10 engaged will be criminal This A proper police conduct.5 defendant objective disregards is an that standard by establishing satisfies that a this burden any subjective making of the officer intent search or seizure occurred without a warr an stop solely and looks to whether ant.6 Once the defendant has made this objective A basis for the exists.11 showing, proof the burden of shifts to the it is required reasonable-suspicion State where to establish that determination 3. Id. 8. See id. Id. State, (Tex. 9. Balentine v. S.W.3d 768 71 Crim.App.2002). State, (Tex.Crim. 5. Russell v. 717 S.W.2d App.1986). State, (Tex. 10. Garcia v. S.W.3d (Tex. Bishop 85 S.W.3d Crim.App.2001). Crim.App.2002). Id. actually conclude that Ford totality reasonably of the by considering the

made was, been, have been or soon would had circumstances.12 Instead, activity.15 engaged in criminal totality evaluating In of the only with a presented court was the trial circumstances, we use a bifurcated stan conclusory statement that Ford violat- total def give of review. We almost dard quarrel do not ing a traffic law. We erence to the trial court’s determination in fact Peavy may have the notion that de facts and review novo trial historical another Ford was that believed to facts not turn application law dispute do we that closely. car too Nor credibility and demeanor.13 Be or disbe- judge is free believe explicit not cause the trial court did make But Peavy’s testimony. spe- without lieve case, findings of fact we review facts, cific, court has no articulable fight in a most favorable evidence assessing whether this means in ruling and assume objectively reasonable. fact implicit findings trial court made pre a trial court is When by the supported record.14 facts, can such the detention sented with Application detached, “subjected to the more not be scrutiny judge of a who must eval neutral Ford asserts that the court particular reasonableness of a uate the holding evidence appeals erred particular search or seizure hearing sup presented suppression such a circumstances.”16 And “[w]hen ported the trial court’s of reason criteria, objective stop is not based on agree. able We police prac arbitrary risk of and abusive appeals “Troop- court of stated Allowing limits.”17 tices exceeds tolerable Peavy that fol- [Ford] er testified he saw spe to suffice in police a officer’s lowing another car at a distance that Terry’s rea cific facts’ stead eviscerates and, thus, Peavy was believed insufficient protection. If this Court suspicion sonable in of the statute.” violation While we suggests, as the dissent were to hold may permissible interpretation be a from removing the “reasonable” would testimony, Peavy’s “following too close” it Therefore, ad we reasonable change does not its conclusive character specific, that articula- principle here to the into articulable facts. And at- a provide to basis required ble facts are requires to do so a strained read- tempting suspicion.18 Mere finding for reasonable from ing of the record. As indicated spe for opinions are ineffective substitutes Peavy’s testimony, Peavy only stated that cific, facts in a reasonable-sus articulable “following Ford too close.” The rec- analysis. picion any ord reveals an absence of facts allow- opinion further rea to The court’s appellate an court determine Peavy’s regarding that the evidence Peavy could soned circumstances which Ohio, 1, 21, 88 S.Ct. Terry v. 392 U.S. 1868, (1968). 20 L.Ed.2d 889 955 S.W.2d 88-89 13. Guzman 1997). (Tex.Crim.App. Texas, S.Ct. 443 U.S. 17. Brown v. (1979). L.Ed.2d 357 Balentine, at 768. 71 S.W.3d Balentine, Garcia, at 768. 71 S.W.3d at 530. 18.See 15. See 43 S.W.3d KELLER, P.J., training, experience, dissenting and his duties enforc- filed a and opinion which WOMACK qualified traffic laws “to make a JJ„ COCHRAN, joined. whether, judgment ‘considering as to vehicles, speed of the traffic and the condi- KELLER, P.J., dissenting in which highway,’ tions of the [Ford] was COCHRAN, JJ., joined. and WOMACK closely.” the car in front of him too It is question: This a difficult presents case training true that law enforcement or ex- specific how must an officer’s perience may factor into a reasonable-sus- sup- about his observations be in order to picion analysis.19 The United States Su- At port finding suspicion? reasonable stated, “objective facts, preme Court has an opinion, issue here is officer’s based on untrained, meaningless to the can be com- observations, “fol- that the accused was permissible bined with deductions from lowing too I close.” would hold legitimate such facts to form a basis prima officer’s constituted facie suspicion of a particular person and for support evidence sufficient to action on that But suspicion.”20 reliance suspicion, but the defendant or requested great- the trial court could special training on this is insufficient to have greater specificity er and if specificity, suspicion establish reasonable absent ob- forthcoming, then the evidence were jective support.21 factual subject suppression. would been greater specificity Because was not re- Conclusion case, quested in this I would affirm the judgment. The evidence before the trial court indi- only Peavy’s cated judgment, Ford Ohio, In Terry v. the fountainhead case closely another car too suspicion” ap- on the “reasonable standard Transportation violation Code plicable “stops,” Supreme Court 545.062(a). any The State failed to elicit that a police said officer had reasonable testimony pertinent to what facts “point specific would if he could which, if together articulable facts taken objectively allow Ford determine facts, with rational inferences from those violating traffic law in support of his reasonably ques- warrant” the intrusion judgment. viewing Even the evidence in “specific of and requirement tion.1 The light the most favorable to the the function of articulable facts” serves ruling, support the record does not a find- to subjecting police the officer’s actions of reasonable Because the judicial meaningful review: facts, any objective record fails to reveal of the Fourth Amendment The scheme deny- we hold that court in erred only when it is as- meaningful becomes suppress. Ford’s motion to point that at some the conduct of sured the of the court of judgment We reverse enforcing the laws charged those appeals and remand the case to the trial detached, subjected the more can be to charges court so that Ford can answer the scrutiny judge who must neutral of particu- in the indictment. evaluate the of reasonableness Cortez, 411, 419, 21. See id. 19. U.S. v. 449 U.S. 101 S.Ct. 690, (1981). 66 L.Ed.2d 621 1, 21, 1868, 1. 88 S.Ct. 20 L.Ed.2d 392 U.S. (1968). 20. Id. 889

495 conduct to in the late court found the observed lar search or seizure suspicion to reasonable particular circumstances.2 be sufficient show cases, In of these probable cause.6 two meaningful judicial carries That review fact testified to specific the court recited a context, re- appellate over to the which support in of their conclu- by the officers a de novo review of the circum- quires than two be- sions: less seconds a trial support stances relied In the other cases hind another vehicle.7 finding simply court remarked that appellate exist.3 But it is also true that did indeed validly pulled over the ac- the officer had give weight” courts must “due appellate anti-tailgating basis of an cused by the “factual inferences drawn resident traffic law.8 None of these cases ad- offi- judges and local law enforcement 4 testimony question dressed whether recognized principles cers.” Texas these sufficiently specific.9 explained v. Guzman where we that, context, in the search and seizure testimony at issue is an The given to “almost total deference” should be such, it perception. based on a witness’ As fact, questions applica- of historical and implicates underlying the concerns Texas turning on questions tion-of-law-to-fact 701, provides Rule of Evidence which demeanor, credibility ap- while other if it of a witness is admissible plication-of-law-to-fact questions are re- “rationally perception based on the de novo.5 viewed a clear “helpful the witness” and under- testimony or standing of the witness’ testimony Whether the bare “he was of a fact in issue.”10 Our determination support too close” is sufficient to 701 on its federal counter- Rule is based suspi- a trial court’s of reasonable part, adopted part which was due squarely cion has not been addressed impossibility” determining jurisdiction. “practical any There are a handful of “fact,” opin- opposed what is a as to mere published appellate opinions in which “fol- ion, century litiga- lowing “tailgating” too close” or was at “demonstrated 11 issue, cases, appel- advisory and in each of these tion.” committee for 1169-1170; Beck, Lyton, F.3d at Rivera, 1132-1134; at 867 F.2d at 1262- F.3d Arvizu, 266, 275, 3. United v. States 534 U.S. Peters, 452; 1263; see also Co- 859 So.2d (2002). 122 S.Ct. 151 L.Ed.2d 740 hen, (rejecting challenge at 886 549 So.2d against constitutionality anti-tailgating stat- Id. at 122 S.Ct. 744. ute). strongly sug- in Peters The discussion (Tex.Crim.App.1997). 5. 955 S.W.2d give specif- gests did more that the officer testimony, about the ic but the court’s remark Perez, 577- United States F.3d sufficiency support of this (8th Cir.2000); Lyton, United States v. Peters, 452- was dicta. See 859 So.2d at Cir.1998); (8th 161 F.3d 1169-1170 454. Beck, 1129, v. United States 140 F.3d 1132- Rivera, (8th Cir.1998); 1134 United States v. previously cited cases. 9. See 1261, (10th Cir.1989); 867 F.2d 1262-1264 State, 451, (Ala. 859 So.2d 452-454 Peters v. Cohen, 10. Tex.R. Evid. 701. Crim.App.2003); State v. 549 So.2d denied, 884, (La.App.1989), cert. 559 886 McGinnis, (La.1990); So.2d 135 State v. 8 Notes, Advisory Fed.R.Evid. 11. Committee 1014, 1016-1020, 605, Neb.App. 608 N.W.2d 608, (2000). 610 Perez, 578; McGinnis, at 608 200 F.3d at 608. N.W.2d 496 ness, sound, size, weight, federal rules cited McCormick’s treatise dis- [and] 17 proposition

for the that “a standard for examples include tance.” Other common opinions and conclusions has permitting speed18 and intoxication.19 proved unadaptable too elusive and too Authority considering the intersection judicial purposes satisfactory of adminis- of 701 search and seizure law Rule 12 tration.” As a result of the immense interesting appears sparse, to be but one difficulty sorting “opinion,” in “fact” from In case decided in Minnesota. State recent edition of McCormick’s treatise has Nolting, agent v. a law enforcement re- concluded that trial courts should be “ac- quested particular a warrant to search a range corded a wide of discretion at least piece part of mail in on his declara- based classifying ‘opinion’ in as ‘fact’ or evidence parcel tion that “I was advised probably admitting evidence even post by was found office a mail [in opinion.”13 found to where constitute clerk], par- who has discovered numerous recognized the role of Rule 701 We type containing cels of this controlled permitting opinions, of admission Although the defendant substances.”20 opinion where the constitutes a “shorthand argued that the clerk’s statement was types rendition of the facts.”14 These of conclusory given weight, no and should be opinions, also called “collective sometimes Supreme of found it Court Minnesota facts,” permitted “catalogue are because cov- legitimate opinion type to be a particulars may inadequate convey of by ered of Evidence 701.21 Federal Rule important lay ideas that witnesses are The court remarked: competent express.”15 mail The conclusion drawn clerk “may up give the full flavor and sum and one, simple directly is a drawn from his (to which the particulars character It personal sensory experience. testifies) may or substitute for witness juries that courts and kind conclusion may catalogue the witness be unable to may resolving fac- legitimately credit “Prototypical” examples of provide.”16 questions. tual type relating include those appearance persons things, to “the conduct, respects If the affidavit had set forth the

identity, competen- the manner of cy person, degrees parcel of a and dark- in which the resembled earli- Kirkpatrick, supra; Ho v. United 12. Id. 18. Mueller & States, (9th Cir.1964). 331 F.2d 144 ed., 11, p. § 13. McCormick on 5th 46 Evidence, (1999). Kirkpatrick, supra; 19. Mueller & United 1472, (5th Lechuga, States v. 888 F.2d 1480 State, 356, (Tex. v. 364 14. Solomon S.W.3d Sanders, 1205, Cir.1989); 686 P.2d Crim.App.2001); Fairow v. 943 S.W.2d Loof (Alaska 1984) 895, (citing Esquivel v. 1212-1213 (Tex.Crim.App.1997). Nancarrow, 209, 399, 104 Ariz. 450 P.2d Kirkpatrick, & 15. Mueller Evidence, Federal (1969)). ed., (1994). 2nd 450-451, 254 N.W.2d 20. 312 Minn. 16. Id. (1977) (bracketed substituted for material Notes, Advisory Committee 2000 Amend original, original). emphasis (quoting Asplundh Mfg. ments to Rule 701 Eng’g, Div. v. 57 F.3d Benton Harbor 454 n. 254 N.W.2d 340. (3rd Cir.1995)) (bracketed material and added). emphasis was lenged assertion of what he observed packages, magistrate might er have rule conclu- for the trial court to more certain of the clerk’s a sufficient basis been reasonably detailing But think the basis of The trial court could sion. we as it did. conclusion, desirable, goes testimony while to that he infer from the officer’s following too probative probable appellant its value to establish did indeed observe not to the conclusion imparted cause and whether information was closely. The by magistrate.22 can be considered trial court a factu- convey to enough may believing appellant for al basis type opinion The fact that a Rule 701 the law. broken determining can be considered in a search necessarily question and seizure does not shown might have Cross-examination sup- mean that the is sufficient to If, cross-examination, the otherwise. trial court’s resolution of the is- port the no for officer could offer basis whatsoever key type sue. But a to how to review this appellant his conclusion that may of evidence be found one of the then have closely, might too the trial court given liberally reasons that has for been officer’s required been to find that allowing its admission: can be ef- abuses close” conclusion did not “following too fectively by checked cross-examination. sup- articulable facts to constitute advisory ex- The federal rules committee port stop. perhaps Or cross-examination plained: would have revealed that the officer’s defi- The rule assumes that the natural char- “following nition of too close” was not in adversary system acteristics of the will description proscribed fact a of conduct result, generally acceptable lead to an question. On the other statute since the detailed account carries more hand, might cross-examination have elicit- assertion, conviction than the broad the officer’s supporting ed details further lawyer expected display can be The trial court could have cho- conclusion. advantage. witness to the best If he testimony disregard the officer’s sen so, fails to do ar- cross-examination and it generality,24 due to its but gument point up will the weakness.23 the trial court’s discretion to credit within testimony, and under the circum- The officer’s appellant here, I testimo- present stances believe the “following too close” is a broad factual ny support was sufficient assertion based on the officer’s observa- of reasonable Substantiating tions. that factual asser- tion with more detail —the number of car respectfully I dissent. lengths separating appellant’s vehicle from followed, being the one or the number of

seconds between the time each vehicle passed point, example a fixed —would preferable, unchal- but the officer’s deciding (ellipsis specificity opin- to credit the Id. at 254 N.W.2d 340 before inserted). 11, p. testimony. ion See McCormick, personal knowledge adequately ("provided Notes, Advisory Committee Fed.R.Evid. the witness need not recite the established opinion, observed matters that are the basis of require although judge has discretion Ross, (Tex. State v. See S.W.3d preliminary abut ob- nothing prevents Crim.App.2000). And facts added). emphasis served asking trial court from the witness for more "—

Case Details

Case Name: Ford v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 9, 2005

Citation: 158 S.W.3d 488

Docket Number: PD-1946-03

Court Abbreviation: Tex. Crim. App.