*1 motion shows that Corporation in the s an element was not essential element that to chal- claim); equivalent are not a Cuyler, grounds 60 S.W.3d these plaintiffs of Weaver, 2. Even of 212; at 829 n. two essential elements lenge 4 S.W.3d to these oth except or were specially grounds failed to claim. If these if Dorsett Dorsett’s deficiency in point Corporation’s out this in the expressly erwise asserted first time on court, for the motion, do so to affirm the she this court would have at 212-13. Cuyler, See appeal. because there is judgment trial court’s (1) court, a asserts In this Dorsett of a “certain summary-judgment evidence must motion stand or summary judgment See owing and on the note. balance” due in presented the mo grounds fall McLemon, That is S.W.3d at 324-25. (2) to no-evi tion; to entitled a be and differences between essen- one of summary judgment, Corporation dence of the two claims. tial elements notice given Dorsett required to have claim, must the claimant promissory-note as which her claim to of the elements proof of an amount that she claims present no evi there was Corporation asserted id. owing and on the note. See is due to Corporation failed do that the dence and provide The Dorsett did not such fact that correctly reciting essential After so. surprising is in the trial court not claim, promissory-note of her elements Corporation not assert did because Corporation “did argues that Dorsett was no evidence of this essential that there noted above in the elements not set forth thereby on notice put Dorsett element Summary Motion for No Evidence present such evidence that she had hold that Judgment.” This court should judgment. summary avoid granting summary erred the trial court hold that This court should Corporation’s mo judgment because granting summary judg- court erred in law. as a matter of tion is insufficient is motion Corporation’s ment because the of law. Because insufficient as matter Majority’s Analysis The so, respectfully the court fails do I essential ele- recites the majority The join analysis, but majority’s decline to claim promissory-note ments of Dorsett’s reversing judgment I concur the court’s attacked and then lists the elements trial court. remanding case motion, of which are none Corporation’s of Dor- same as the essential elements majori- promissory-note claim. sett’s motion Corporation’s find the
ty does not law, appar- a matter
to be insufficient as not specially did ently because Dorsett DELAFUENTE, Appellant Joseph p. special But except. ante at 613. See Cuyler, required. See exceptions majority then at 212-13. Texas, Appellee. The STATE grounds stat- that the appears to conclude No. 14-11-00500-CR. motion are effec- Corporation’s ed in the (1) tively equivalent to assertions Texas, Appeals Court is the Corporation there is no evidence the Dist.). (14th Houston (2) note, and there is no
maker of the Dec. is balance” that due evidence of “certain pp. See ante at owing on the note. grounds specified A review of the 613-14. *3 Conrad, Houston, for
Clay appellant. S. Macha, McMinn, Austin, Lisa C. Ross for The of Hempstead, State Texas. FROST, of Panel consists Justices SEYMORE, and JAMISON.
OPINION ON REMAND JAMISON, MARTHA HILL Justice. Appellant Joseph Delafuente was charged pos with Class B misdemeanor & marijuana. session See Tex. Health Safety Appellant § 481.121. filed a Code alleging motion to that the evi suppress, against him during dence was obtained probable initiated without suspicion. cause The trial our appellant’s court denied motion. In opinion, we ar- original found in the ticulable facts record that would support for the traffic va Appeals Court Criminal judgment cated our and remanded effect, if so case that we consider the Mendoza, any, of State v. 365 666 S.W.3d (Tex.Crim.App.2012), reasoning on our analysis.1 See Delafuente cu (Tex.Crim.App.2012) (per riam). remand, On apply we the standard Mendoza, of review articulated in but re reach same conclusion. We thus and remand for consis proceedings verse opinion. tent with this Court, Mendoza, finding with appeals 1. the written court of instructions to abate In ambiguous lacking judge supplemental find- findings of case to the trial fact determination, ings. at remanded to hour.... I initiated a BACKGROUND vehicle. 24, 2009, approximately 9:12 On June at
a.m., Davis the vehicle in Officer observed 30, 2010, On judge November passenger traveling was a appellant’s denied motion to suppress and miles hour a 65 approximately 52 made of fact conclusions appel- zone. Davis mile-per-hour law. The relevant portion judge’s “impeding Upon lant’s vehicle for traffic.” findings of fact states: vehicle, immediate- approaching Davis the offense the officer states *4 ly marijuana. a odor strong noticed of that [appellant] impeding traffic. occupants Davis the of the vehicle notified Since there was no contraverting [sic] marijuana, ap- that he smelled and asked testimony presented no and cross-exami- replied, pellant, Appellant “Where is it?” nation, the Court that accepted state- Appellant in the trunk.” “It’s informed ment as fact. the Therefore Court finds marijuana belonged solely Davis that the that Defendant’s was impeding vehicle appellant. to traffic. patrol Davis secured in his judge’s The trial conclusion of law states: regarding the driver vehicle and notified probable “The officer had cause for then appellant’s admissions. driver because the defendant was produced partially marijuana a smoked slow[ly] impeding and traffic.” Appellant “roach,” bag marijuana, a that contained timely appealed the denial of his to motion marijua- and items for smoking other used suppress. regarding na. the driver Davis informed search instruct- his intent conduct a and ANALYSIS remain with her ed her to in vehicle issue, In appellant argues his produced two two children. The search trial by denying court erred his motion marijuana pipes marijuana para- and other suppress evidence because the did State phernalia. present not specific, articulable facts dem- onstrating that reasonable exist- The driver and two children were re- remand, stop. ed On the State Appellant leased. arrested and argues that we should remand the case to marijuana. charged possession with of supplemental allow the trial court to make Appellant filed a evi- suppress motion findings of fact and conclusions of law to dence challenging the reasonable clarify “which facts the trial court believed required for the traffic At the hear- what it motion, reasonable inferences drew ing pre- evidence in from those facts to that the car conclude three-page report sented was the offense [a]ppellant passenger impeded was a portion of Officer Davis. The relevant the trial court’s Appellant argues traffic.” that: offense states sufficient, findings credibility are no of fact I congestion observed a traffic (there determinations need to be made inside westbound lane Interstate 10 [on suppression were live witnesses at County]. Traffic Waller volume was We hearing), necessary. and no remand is I inspected moderate. further and ob- agree appellant. with grey served a 4 door sedan Chevrolet ... prima below facie limit Burden Proof I. Traf- per Impeding 65 miles hour vehicle, al trav- evidence paced fic. I which was order legedly of the Fourth eling approximately obtained violation precisely what Sometimes it is not clear Amendment, produce must the defendant or what judge found rebutting of historical presumption credibility determinations judge’s Ford v. conduct. proper police Mendoza, 365 S.W.3d at were. (Tex.Crim.App.2005). Thus, losing party, upon request by his initial burden meets defendant explicit make histori- judge must search or establishing warrantless findings cal fact and determi- The burden then Id. seizure occurred. appellate Id. If the court deter- reasonable- nations. prove shifts to State to findings the trial court’s Id. mines that or seizure. ness of the search to resolve the ambiguous insufficient by Officer report prepared The offense be legal issue, then the case should re- agreement of both Davis was admitted to the trial court to make manded that a report demonstrates parties. The greater specificity. of fact with Id. made, seizure warrantless search challenge does that here. and the State *5 Suspicion Imped- and III. Reasonable Therefore, is on State to the burden ing Traffic of the search establish the reasonableness the officer had reasonable Whether and seizure. See id. stop the traffic is ana suspicion to initiate Id. lyzed parts. in two at 669-70. II. of Review Standard analysis part first of the is based sup motion to hearing In a on a leading up events that occurred factfinder judge is the sole press, or and involves determina search credibility judge weight and of the and for tion of historical facts reviewed an Mendoza, at 365 S.W.3d evidence. part, Id. The abuse of discretion. second Thus, give total deference 669. we almost these facts amount to whether historical of historical to the court’s determination suspicion when viewed from the (citing facts Id. credibility. and Guzman objectively an standpoint of reasonable of State, 85, 89 (Tex.Crim.App. 955 S.W.2d ficer, fact, and question is mixed of law 1997)). judge’s historical We review a Here, Id. 670. reviewable de novo. credibility and determina findings factual during hearing evidence admitted Id. How tions for an abuse of discretion. on the motion to was Officer ever, rulings that determine legal ultimate report, Davis’s offense so the trial court’s suspicion probable or whether reasonable solely of fact were based on that. subject to de novo re cause existed We review the trial court’s determination (citing view. Ornelas v. Id. at 669-70 of these historical facts for an abuse of 696, 699, States, 690, 116 United 517 U.S. discretion. See id. at 669. 1657, (1996)); 911 see S.Ct. 134 L.Ed.2d (“The Guzman, also 955 at 87-89 An officer conducts a lawful reviewing suspicion when he has reasonable of deference a court af amount violating on an individual is ruling fords to a trial court’s a ‘mixed believe that (such Ford, question of and as the issue law. 158 S.W.3d at Reason law fact’ cause) spe if the officer has probable often is determined able exists cific, that, when combined judicial position actor is a better articulable facts, those appellate to decide the with rational inferences from issue.... reasonably him ques lead conclude courts review de novo ‘mixed would been, is, has is [turning tions of law and on an that an individual or about fact’ demeanor].”). activity. engaged to be in criminal Id. evaluation of impede, There is a difference between ar- slowly defendant increased speed hour); one his to 57 miles per ticulable facts on the hand conclu- see also Coronado, 923, U.S. v. 480 F.Supp.2d sory opinions statements or on the other. 927- (W.D.Tex.2007) (Tex. (government failed to Castro v. show that existed Crim.App.2007). conclusory Mere state where defendant ments are not an effective substitute per hour the left lane where the speed specific, articulable facts when the nature limit was 65 miles hour and officer requires the offense an officer to make testified that there were ten to fifteen cars subjective determination. Id. (noting behind defendant’s car but testify did not that whether driver changed lanes without long as to how he observed the backup of determination, signaling objective was an vehicles). following closely, speeding, unlike too intoxicated, Application IV. being subjective which are de terminations). Here, the trial court concluded “[t]he probable officer had cause for the stop law, “may Under Texas a vehicle because the defendant slow slowly not drive so impede as to the nor and impeding traffic.” In light of Mendo- traffic, mal and reasonable movement of za, urges the State us to remand the case except speed necessary when reduced is for the trial court to make supplemental operation for safe or in compliance with findings of fact and conclusions of law *6 545.363(a). § law.” Tex. Transp. Code because the State contends trial “[t]he itself, driving, “Slow in and of is not a court’s finding that the ‘impeded [vehicle] statute; violation of the a violation traffic’ could have been shorthand for a occurs when the normal and reasonable finding of the component facts that there impeded.” movement of traffic is Tex. congestion was traffic in the left lane Gonzales, Dep’t Safety Pub. 276 of caused the 13 traveling [vehicle] miles- 88, 2008, S.W.3d (Tex.App.-San 93 Antonio an-hour below speed the limit in the left no pet.). Other Texas courts have found lane, or it could have been a mislabeled certain support evidence insufficient to conclusion of law.” disagree. We The trial suspicion reasonable under “impeding the finding neither could be shorthand See, Gonzales, traffic” e.g., statute. 276 for evidence presented that was not at the (no S.W.3d at 93-95 reasonable hearing, nor could the trial court’s state- existed where traveling defendant was 45 ment that the vehicle impeding was traffic per miles hour mile-per-hour a 65 be a mislabeled conclusion of law. The zone—which officer “considered trial court unambiguously that stated it impeding traffic”—and the officer could accepted the officer’s statement “as fact” not recall the amount of traffic on the under the section entitled “Findings of highway. stated, The court “An officer’s Fact” separately concluded “the defen- conclusory statement that the law has dant ... impeding was traffic” under the been violated is prove not sufficient to section entitled of “Conclusions Law.” suspicion.”); v. Thus, Richardson the trial court both concluded as a 634, 636-39 (Tex.App. matter fact of and as a matter of law that (no -Amarillo pet.) reasonable sus the vehicle impeding was traffic.
picion existed where defendant was travel A. No need for remand.
ing per 45 miles hour in right-hand lane, only defendant, one passed vehicle shall examine the basis for the We there was little or no finding traffic for defendant trial court’s imped- that the vehicle supporting the conclusion trial ments officer’s whether the
ed to determine traffic supplement its was traffic. We required impeding be to that the vehicle court should Mendoza, an In in Mendoza. factual findings, as conclude that trial court’s thus and arrested defendant stopped the officer clear show sufficiently were to findings intoxicated. Mendo- her while on reach- what historical facts it relied za, hearing at 667. After ing its conclusion. granted the trial court testimony,
officer’s suppress, to con- motion the defendant’s B. Abuse discretion. suspi- lacked reasonable cluding the officer Id. on traffic Based cion to make the We must determine whether findings, factual judge’s written trial in credit trial court abused discretion inferred that appeals court the officer’s statement that the vehicle ing the officer’s tes- judge must have believed id. 669-70. impeding traffic. See judge’s legal and held that timony stated in Officer Davis’s The have the officer did not conclusion that report relevant to whether vehicle defen- (1) are ob impeding traffic that Davis car was in error. Id. Court dant’s congestion in the inside served reversed, finding appeals Criminal (2) I-10,3 traffic volume westbound lane ambigu- trial written were judge’s (3) moderate, paced appel Davis include deter- ous and did not hour in lant’s car mination, the case to the and remanded zone. mile-per-hour appeals with instructions abate court of Ford, who police In officer made judge prepare case hearing at the testified supplemental findings. Id. he vehicle motion saw a distinguish- facts Mendoza vehi- “following too close behind” another Mendoza, court able. included *7 only cle. 158 at 491. That was the the findings in what Court of its factual describing testimony given by officer the Appeals referred to as “weasel Criminal up to traffic leading the circumstances the the trial court words” that showed Appeals Id. The stop. Court of Criminal (i.e. testimony have the officer’s believed that stated that stated “[the officer] was “the officer ‘believed’ [defendant] ‘following was too close.’ The record Ford weaving he a few speeding; ‘noticed’ her allowing an any reveals an absence times; he ‘stated’ that she would continu- appellate court to determine the circum- cetera). down”; ously et See id. slow rea- upon [the officer] stances could hand, Here, other the trial 671. was, actually sonably conclude that Ford findings included no “weasel court’s factual been, have en- had or soon would been expressly accepted the court words”: trial 493. gaged activity.” in criminal Id. at was statement that vehicle officer’s court that the evidence before The held impeding traffic “as fact.”2 The trial in [the the trial court “indicated that any findings factual court did not make following was an- judgment, Ford officer’s] the officer’s other state- regard with however, closely.... car The State failed it is other too report; in the offense ments to what any testimony pertinent the trial court believed the state- to elicit clear that Moreover, report perhaps implies, written but does not 2. here could 3. state, traveling a that vehicle was in that revised to include determi- not be lane. because no witnesses testified. nation FROST, Justice, KEM objective- officer] facts would allow THOMPSON [the ly violating dissenting determine Ford was a traffic on remand.
law.” 494. Id. at majority concludes that the trial
Here, denying ap- court abused its discretion in Officer Davis’s offense because, pellant’s suppress motion to in merely stated that the traffic volume was view, moderate, congestion majority’s the record does not that there was in a lane, support appel- that appellant’s left and that vehicle was lant I respectfully violated the law. traveling hour below the dis- sent. The speed following while record evidence is sufficient to limit the officer was support the it. that officer’s reasonable There was the normal to initiate the stop. traffic For this rea- reasonable movement traffic was son, this appellant’s court should affirm trial impeded by driving. Specifi- judgment. cally, presented there was no evidence that appellant’s car was the cause of the con- Background
gestion, traffic moderate volume of day, unusual the time whether a During stop, appellant, who was pass appellant, cars were forced to how vehicle, a passenger long the officer observed traffic con- and charged arrested with the class B gestion appellant, behind of possession marijuana. misdemeanor speed 13 miles below the limit was unrea- evidence, He suppress filed motion to given sonable weather con- challenging suspi- officer’s reasonable ditions at opinion the time. The officer’s initiating cion for the traffic Follow- traffic,” “impeding that appellant was ing hearing, court appel- denied without articulable facts to sub- motion to suppress. Appellant lant’s then it, support stantiate is insufficient to pleaded “guilty” charged offense. suspicion. existence of reasonable See appellant’s The trial court sen- assessed Castro, 742; Ford, 227 S.W.3d at days’ tence at three confinement and lev- S.W.3d at The State failed to elicit ied now Appellant challenges a fine. testimony sufficient as to facts that would sup- trial court’s denial of his motion to “allow objectively deter- [Officer Davis] press, single asserting issue that [appellant] violating mine a traffic refusing court erred *8 Ford, 158 law.” S.W.3d at 494. produce evidence because the State did not specific, dem- articulable facts onstrating suspicion that a ex- reasonable
CONCLUSION majority isted for the traffic by court abused discretion But, agrees appellant’s with assertion. the crediting the officer’s that the statement supports record evidence the trial court’s impeding vehicle was traffic. Accordingly, ruling. justify the does not record reasonable violating was Reasonable-Suspicion Standard for
law, and the trial erred in denying court Determination appellant’s motion to evidence. An officer and detain a stop person
We judgment reverse and if the officer has reasonable proceedings remand for consistent with violation in had progress traffic was or opinion. this State, Kelly
been v. 331 committed. J., FROST, 541, (Tex.App.-Houston dissenting. [14th S.W.3d 549 624 refd). report, in Officer Davis 2011, suspi As reflected his Reasonable pet.
Dist.] reason to believe the vehicle had has articu- if the officer cion exists law, Texas “an impeding traffic. Under that, with ra when combined lable facts slowly may not drive so as to operator facts, those would inferences from tional and move impede the normal reasonably that a conclude lead him speed except ment of traffic when reduced been, is, or actually has person particular in operation for com necessary is safe activity. engaged be criminal soon will Transp. Tex. Code pliance with law.” (Tex. 488, State, 158 S.W.3d Ford v. 2011). 545.363(a) (West § As the Ann. State, 217 Mount v. Crim.App.2005); out, interpreting section majority points 716, (Tex.App.-Houston 727-28 545.363(a) Transportation of the Texas 2007, is an pet.). no This Dist.] [14th Code, held Texas courts have that slow court requires objective standard that itself, not violation of driving, is any subjective intent of the disregard statute; only when a violation occurs solely look making stop officer movement of normal objective an basis whether impeded. Dep’t is Tex. Pub. traffic Ford, 492. A rea 158 S.W.3d at exists. (Tex. Gonzales, 88, v. 276 S.W.3d Safety sonable-suspicion determination is made 2008, pet.). Antonio no Courts App.-San totality by circum considering is if held that this statute violated have Id. at 492-93. stances. there is evidence that traffic was backed up driving driver’s slow or that due Supporting the Trial Evidence completely driver’s vehicle was Court’s Determination in a lane of traffic. See id. Although majority concludes that 24, reflects that on June The record any offense lacks Officer Davis’s 2009, a.m., 9:12 Officer approximately evidence that the normal and reasonable patrolling Interstate 10 in Brian Davis was by impeded movement of County he observed traffic Waller when vehicle, the driving of the record con- slow inside, lane congestion in the westbound support Officer tains sufficient facts to traffic volume. Officer and moderate imped- Davis’s belief that the vehicle was in which appellant Davis saw the vehicle See, ing e.g., (concluding no traffic. id. speed passenger was a below find and rea- evidence existed to normal hour, leading limit by impeded sonable flow of traffic was impeding officer to believe the vehicle appellant’s when officer could not unit, Offi- Using Doppler traffic. his radar at time of traffic recall conditions speed of vehi- cer calculated the Davis 382, stop); Davy per hour. Officer Davis cle at 52 miles (holding (Tex.App.-Waco pet.) evi- activating then initiated a traffic *9 factually was insufficient to support dence patrol emergency lights his unit’s rear suspicion stop traffic based on reasonable move from the center lane to the inside in area when when other cars were lane, moving. the vehicle was Ac- where appellant). officer These facts officer, the vehicle immedi- cording support reasonable-suspi- Upon ately to the inside shoulder. yielded cion determination. vehicle, Officer Davis in- approaching the marijua- stantly strong by majority, detected a odor Officer As observed marijuana report he na. admitted the be- Davis stated the offense that Appellant congestion in the longed “observed a traffic inside to him. majority notes that majority westbound lane.” cites to Ford v. ease in but does not which the “report perhaps implies, Court Criminal Ap- peals reversed a
state, trial court’s appellant’s traveling finding that vehicle was because there in that lane.” See ante at 622 n. 3. In was a lack specific, articulable facts. See conclusion, reaching majority fails But, S.W.3d at 488. the facts of Ford portion to mention an additional of the differ in ways notable from the facts be- report, offense which shows that Ford, fore this court. In officer’s traveling indeed was in the inside west- testimony was that the appellant was “fol- lane, bound in the same area where Officer lowing too close” behind another vehicle. congestion. Davis observed traffic As re- Id. at 491. Without more articu- report, flected in the specifi- Officer Davis facts, reasoned, lable the Ford court cally stated: officer’s testimony was conclusory and in- stop required Initiation of the traffic objectively sufficient to determine that ap- utilizing emergency lights the rear on pellant violating was a traffic law. Id. at patrol vehicle to allow a lane safe case, 493. In today’s Officer Davis stated vehicle, change my patrol from the that he conges- observed traffic center to the inside lane. The driver of inside, lane, tion in the westbound but also sedan immediately yielded Chevrolet the vehicle was impeding traffic to the inside shoulder. slowly, too specifically, 13 miles Officer Davis expressly stated his of- per Further, hour the speed below limit. fense that he saw congestion traffic Officer Davis stated that traffic volume in the inside lane. This was the same lane was moderate and he initiated the traffic in which Officer Davis observed the vehicle stop moving after from the center to the question hour and lane, inside where the proceeded vehicle impeding traffic. In cases in which courts move to the inside shoulder. Unlike the have refused to find a violation of section Ford, scenario in today’s record in case 545.36(a), pointed courts have to a lack of specific contains allowing concerning evidence traffic conditions at court to determine the upon circumstances See, the time of the stop. e.g., traffic reasonably Officer Davis could con- Gonzales, 276 (finding S.W.3d at 94 no clude that the driver of the vehicle was evidence existed to conclude normal and violating traffic law.
reasonable flow of traffic impeded by
appellant’s driving when officer could not Conclusion recall traffic conditions at time of traffic sum, the evidence in the sup record stop); Davy, 67 (holding S.W.3d 382 at 393 ports the trial court’s conclusion that Offi factually sup- insufficient to cer Davis had reasonable to initi port traffic based on suspi- ate a Because the cion when no other cars were in area when was based on Officer Davis’s observation officer stopped appellant). These cases the vehicle in which appellant was because, factually distinguishable in riding moving slowly impeding review, the case under Officer Davis traffic, ex- there was no basis for suppressing pressly stated that he observed moderate during evidence obtained the search of *10 traffic volume and traffic congestion State, in the vehicle. See Moreno v. 124 S.W.3d inside, 339, westbound 2003, lane when he (TexApp.-Corpus 346-47 Christi the vehicle for impeding by driving pet.) (upholding trial implicit court’s hour in the inside lane. denial of motion to suppress finding after record was correct supported impeding-traffic cause existed
probable theory applicable obser of law arresting any on officer’s under violation based case.”). driving 25 miles should Accordingly, this court vation that in an zone miles-per-hour a 45 per hour in issue and affirm appellant’s sole overrule traffic.) The heavy area with medium judgment. court’s trial overruling appel not err in did trial court ruling suppress
lant’s motion Armendariz upheld. See
should be (Tex.Crim.App.
2003) (“The obligated appeals court ruling on appel uphold ruling if that
lant’s motion