Case Information
*1 PD-0693-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/8/2015 11:25:08 AM Accepted 7/9/2015 4:14:04 PM ABEL ACOSTA IN THE CLERK COURT OF CRIMINAL APPEALS LISA D. WALL, §
APPELLANT § V. § NO. PD-0693-15
§
THE STATE OF TEXAS, §
APPELLEE § APPELLANT’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
OF THE COURT OF APPEALS FOR THE SECOND COURT DISTRICT OF TEXAS IN CAUSE NUMBER 02-13-00552-CR, AFFIRMING THE JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER CR-2012- 01008-D IN COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY, TEXAS; THE HONORABLE JOE BRIDGES, PRESIDING. §§§
APPELLANT’S PETITION FOR REVIEW §§§
JASON ZENDEH DEL Lead Counsel for Appellant The Zendeh Del Law Firm 7600 San Jacinto Place, Suite 200 Plano, Texas 75024 Telephone (214) 919-3600 Facsimile (214) 919-3599 Jason@zenlawfirm.com State Bar Number 24044988 !
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IDENTITY OF PARTIES AND COUNSEL The trial judge was the Honorable Joe Bridges, the presiding judge of County Criminal Court No. 4 of Denton County, Texas.
Appellant is Lisa D. Wall, who was the Defendant in the below trial court case. Appellant was represented at trial and on appeal by Jason Zendeh Del of the Zendeh Del Law Firm. This attorney’s address is 7600 San Jacinto Place, Suite 200, Plano, Texas 75024.
The State of Texas, which is represented by Denton County District Attorney Paul Johnson, is also a party to this litigation. At trial, the State was represented by Sarah Wood. On appeal, the State was represented by Catherine Luft. The address of these attorneys is Denton County District Attorney’s Office, 1450 E. McKinney Street, Denton, Texas 76209.
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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... v STATEMENT REGARDING ORAL ARGUMENT .............................................. 1 STATEMENT OF THE CASE ................................................................................ 2 PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION .................. 3 QUESTION FOR REVIEW ..................................................................................... 4 STATEMENT OF FACTS ...................................................................................... 5 DISCUSSION ........................................................................................................... 6
I. The Court of Appeals opinion ………………………………………….....6
II. Reasonable suspicion in a motion to suppress …………………………..6 Fourth Amendment…………………………………………………...8 III. The court of appeals upheld the conviction, and reversed the trial court’s judgment, when the evidence did not support the determination that Officer Padgett possessed reasonable suspicion to initiate the traffic stop .10 CONCLUSION ....................................................................................................... 14 PRAYER ................................................................................................................. 15 CERTIFICATE OF COMPLIANCE ...................................................................... 16
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CERTIFICATE OF SERVICE ............................................................................... 16 COURT OF APPEALS’ OPINION ........................................................................ 17
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TABLE OF AUTHORITIES
CASES
Abney v. State , 394S.W.3d 542 (Tex. Crim. App. 2013) .......................................... 7 Amador v. State , 275 S.W.3d 872 (Tex. Crim. App. 2009) ...................................... 7
Armendariz v. State , 123 S.W.3d 401 (Tex. Crim. App. 2003), cert. denied , 541 U.S. 974 (2004) .................................................................................................... 8 Brown v. Texas , 443 U.S. 47 (1979) ......................................................................... 9
Cady v. Dombrowski , 413 U.S.433 (1973) ............................................................. 10
Corbin v. State , 85 S.W.3d 272 (Tex. Crim. App. 2002 ......................................... 10
Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) ....................................... 6, 7
Guzman v. State , 955 S.W.2d 85 (Tex. Crim. App. 1997) ....................................... 7
State v. Kerwick , 393 S.W.3d 270 (Tex. Crim. App. 2013) ............................. 11, 13
State v. Stevens , 235 S.W.3d 736 (Tex. Crim. App. 2007) ....................................... 8
Terry v. Ohio , 392 U.S. 1 (1968) ................................................................... 8, ,9, 13
United States v. Brigmont-Ponce , 422 U.S. 873 (1975) ........................................... 8
Wall v. State , No. 02-13-00552-CR, 2015 WL 2169307 (Tex. App.—Fort Worth May 7, 2015 ) (memo op.) (not for publication) ................................. 3, 6, 10, 11, 14
v! *6 Whren v. United States , 517 U.S. 806 (1996) ....................................................... 8, 9 Wright v. State , 7 S.W.3d 148 (Tex. Crim. App. 1999) ........................................... 9
STATUTES
U.S. Cons. Amend. IV .............................................................................................. 8 Tex. Cons. Art. 1,§10 ................................................................................................ 8
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IN THE COURT OF CRIMINAL APPEALS LISA D. WALL, §
APPELLANT §
V. § NO. PD-0693-15
§
THE STATE OF TEXAS, §
APPELLEE § APPELLANT’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
OF THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS IN CAUSE NUMBER 02-13-00552-CR, AFFIRMING THE JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER CR-2012-01008-D IN COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY, TEXAS; THE HONORABLE JOE BRIDGES, PRESIDING.
STATEMENT REGARDING ORAL ARGUMENT Oral argument is not necessary to resolve the issues raised by this case.
1! *8 STATEMENT OF THE CASE Appellant was convicted of the misdemeanor offense of Driving While Intoxicated (“DWI”). [CR 111] The trial court sentenced Appellant to 300 days confinement in the Denton County Jail and a $500 fine. [CR 111] However, the trial court suspended the imposition of the jail sentence and placed Appellant on fifteen months of community supervision. [CR 111]
PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION On appeal, Appellant argued that the trial court abused its discretion by denying Appellant’s motion to suppress the evidence obtained during the unlawful stop of Appellant’s vehicle. [App. brief at 3]
A panel of judges from the Second District Court of Appeals affirmed the trial court’s judgment. Wall v. State , No. 02-13-00552-CR, 2015 WL 2169307, at *1 (Tex. App.—Fort Worth, May 7, 2015) (memo op.) (not for publication). In its opinion, however, the appellate court sustained Appellant’s issue that the trial court erred when it found in its findings of fact that the officer had reasonable suspicion to stop Appellant on the basis of disregarding a control device or making an overly wide U-turn. Id. at *4. The court of appeals went on to determine that the trial court did err when it ruled to deny Appellant’s motion to suppress on the basis that the officer had reasonable suspicion that Appellant was engaged in criminal activity. Id. at *5. The trial court had made findings of fact, after hearing evidence at the suppression hearing, that Appellant’s driving was not reasonable suspicion of DWI. [CR 104] The court of appeals upheld the trial court’s judgment under this theory.
QUESTION FOR REVIEW
Did the court of appeals erroneously review and affirm the trial court’s ruling on the motion to suppress? Specifically, did the appellate court improperly uphold the motion to suppress on a theory that the trial court had found did not exist (i.e., that the officer had reasonable suspicion to stop Appellant’s vehicle and initiate a temporary detention) in its findings of fact and conclusions of law?
STATEMENT OF FACTS
On December 18, 2011, Appellant was driving her pickup truck 1 in Denton County, Texas. [2 RR 7-9] At approximately 2:00 a.m., Corey Padgett, a police officer with the Denton Police Department, pulled his patrol car behind Appellant’s vehicle at the intersection of Fulton and University. [2 RR 7-9] He stated that Appellant was travelling eastbound. [2 RR 10] Officer Padgett testified that the light at the intersection was flashing yellow, which indicated that cars were to proceed with caution through the light. [2 RR 9] He stated that Appellant, however, was completely stopped at the light for a longer than normal period. [2 RR 9, 12]
Officer Padgett then testified that Appellant proceeded through the light and approached a second flashing yellow light at Alice and University. [2 RR 13] There, Appellant slowed down significantly in the middle of the intersection, but she did not completely stop her vehicle. [2 RR 13] He then stated that after proceeding through the intersection, Appellant changed lanes, got into the left- hand lane, and made a U-turn. [2 RR 14] At that point, Officer Padgett turned on his overhead patrol lights and Appellant pulled her vehicle into a Kroger parking lot. [2 RR 25-26]
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 Appellant will refer to her truck as a “vehicle” throughout the brief.
DISCUSSION
I. The Court of Appeals’ opinion.
The Fort Worth court of appeals determined that the trial court’s finding that the officer did not have reasonable suspicion to stop Appellant’s vehicle on the basis of DWI was not supported by the evidence. Id. at 5. The appellate court
upheld Appellant’s conviction under this theory. Id. However, the court of appeals agreed with Appellant and went on to state in its opinion that the trial court’s findings that Appellant committed traffic offenses (i.e., making an improper U-turn and disregarding a traffic control device) were not supported by evidence. Wall , 2015 WL 2169307, at *4. 2
II. Reasonable suspicion in a motion to suppress.
“To suppress evidence on an alleged Fourth Amendment violation, the defendant bears the initial burden of producing some evidence that rebuts the presumption of proper police conduct.” Ford v. State , 158 S.W.3d 488, 492 (Tex.
Crim. App. 2005). When a defendant meets the burden by establishing that the search or seizure occurred without a warrant, the burden shifts to the State to prove that the search or seizure was prompted by reasonable suspicion that an individual !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
was violating the law.
Abney v. State , 394 S.W.3d 542, 547 (Tex. Crim. App.
2013); see also Amador v. State , 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
Here, at the beginning of the suppression hearing, the State stipulated that this case involves a warrantless arrest. [2 RR 7] Therefore, this stipulation shifted the burden to the State to establish the reasonableness of the warrantless detention. See Ford , 158 S.W.3d at 492.
A court of appeals reviews a trial court’s denial of a motion to suppress under a bifurcated standard of review to evaluate the totality of the circumstances and determine whether reasonable suspicion exists. See Abney , 394 S.W.3d at 547;
Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The court of appeals will give “almost total deference to the trial court’s determination of historical facts, especially when the trial court’s findings are based on an evaluation of credibility and demeanor.” Abney , 394 S.W.3d at 547; see also Guzman , 955 S.W.2d at 89.
The court of appeals will then review the trial court’s legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Ford , 158 S.W.3d at 493. The appellate court must uphold the trial court’s ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its *14 ruling.
State v. Stevens , 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
! Armendariz v. State , 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied , 541 U.S. 974 (2004).
Fourth Amendment
The United States Constitution protects persons against “unreasonable searches and seizures.” U.S. Cons. amend. IV. The United States and Texas Constitutions proclaim that law enforcement personnel may not search an individual absent a warrant based on probable cause. Id. ; Tex. Cons. art. 1,§10. It has long been the rule, however, that a temporary investigative detention and pat down search for possible weapons or contraband without a warrant is permissible provided the officer has a reasonable belief the individual has been engaged in criminal activity or is armed. See generally Terry v. Ohio , 392 U.S. 1 (1968).
A seizure under the Fourth Amendment must be objectively reasonable in light of the particular circumstances of the case. See id. at 21-22. Whether a traffic stop is reasonable depends on “a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law enforcement.” United States v. Brigmont-Ponce , 422 U.S. 873, 878 (1975). A seizure based on reasonable suspicion or probable cause will generally be *15 reasonable.
Whren v. United States , 517 U.S. 806, 818 (1996); Terry , 392 U.S. at 21-23.
For an officer to initiate a traffic stop, the officer must have more than a mere hunch. Whren , 517 U.S. at 818 . The officer must be able to articulate objective facts and circumstances that demonstrate he or she reasonably believed the Defendant was engaged in criminal activity. See, eg., Brown v. Texas , 443 U.S. 47, 51 (1979) (to detain, officers must “have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity”); Terry , 392 U.S. at 30 (reasonable suspicion exists only where policeman reasonably concludes, inter alia, “that criminal activity may be afoot”).
The law does provide, however, that if a police officer objectively has reasonable suspicion or probable cause that an offense has been committed then he or she may reasonably seize an individual through the exercise of his community caretaking function. Wright v. State , 7 S.W.3d 148, 151-52 (Tex. Crim. App.
1999). This is the so-called community caretaking function and is the exception to the warrant requirement. Id. at 151.
An integral part of a police officer’s duty is to “serve and protect.” Id. As part of this duty, a police officer can approach and assist an individual whom he or she believes is in need of help. Id. An officer will act reasonable “when he
9! *16 stopped the vehicle out of concern for the welfare of the [Defendant]” and not to
investigate the Defendant. Id.
This doctrine necessarily examines the intent of the officer when he or she invokes the doctrine. Importantly, both the United States Supreme Court and the Court of Criminal Appeals of Texas have held that the “community caretaking function, however, is ‘totally divorced from the detention, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v.
Dombrowski , 413 U.S. 433, 441 (1973); Corbin v. State , 85 S.W.3d 272, 276-77 (Tex. Crim. App. 2002). That is, a police officer cannot cloak his intent to conduct a criminal investigation, by invoking the community caretaking function. Corbin , 85 S.W.3d at 276-77. Thus, an officer’s subjective intent is paramount in those cases. Id.
III. The court of appeals upheld the conviction, and reversed the trial court’s judgment, when the evidence did not support the determination that Officer Padgett possessed reasonable suspicion to initiate the traffic stop.
As stated above, the appellate court affirmed Appellant’s conviction on the theory that Officer Padgett had reasonable suspicion to stop Appellant’s vehicle on the basis of DWI. Wall , 2015 WL 2169307, at *5-6. In doing so, the court of appeals reversed the trial court’s finding and conclusion that Officer Padgett did not have reasonable suspicion to temporarily detain Appellant on this theory. Id.
The trial court made the following relevant findings of fact: *17 The Court finds the driving of the defendant is not reasonable suspicion of driving while intoxicated. Caution in entering an intersection is proper. The Defendant sat at the intersection for 26 seconds that the [sic] Officer Padgett could observe and that is not obstructing a highway.
But the court finds the defendant could be stopped for disregarding the traffic control device and making a wide turn over the white line. Holt v. State, 724 S.W.2d 914 (Tex. App.-San Antonio 1987). The Court is finding that the Video showing the action is sufficient without the officer testifying that he saw this or was relying on it. [CR 104-05]
The appellate court, however, citing State v. Kerwick on the basis that “reasonable suspicion is a mixed question of law that is reviewed de novo on appeal,” determined that the trial court’s findings were not supported by the record and that Officer Padgett did possess reasonable suspicion to stop Appellant’s vehicle on the basis of suspected DWI. 393 S.W.3d 270, 273 (Tex. Crim. App.
2013); Wall , 2015 WL 2169307, at *5. The appellate court based its determination on (1) Appellant’s “prolonged stop” at one flashing yellow light, (2) delayed response to brake and subsequently almost complete stop in the middle of the another flashing yellow light intersection, (3) Officer Padgett’s testimony that he had made previous DWI stops at a flashing yellow light at the exact location that Appellant’s vehicle was travelling, and (4) Officer Padgett’s testimony that *18 Appellant was driving her vehicle at approximately 2:00 a.m. on a weekend in an
area that bars are located. Id.
At the suppression hearing, Officer Padgett testified as follows: [State]: And at what point did you suspect the driver to be intoxicated?
[Officer]: Upon contact with them and after speaking with them. [State]: And what about their driving habits led you to suspect them for DWI?
[Officer]: I’ve had DWIs before where somebody stops at a flashing yellow light on University; at that exact area, actually. So stopping at flashing yellow lights is not normal. The time of the day. It’s 2:00 a.m. Bars close. It’s when most of our DWIs happen.
. . . .
[Appellant]: And on that occasion, and also in your report, you listed two very specific reasons as to why you pulled over Ms. Wall, why you indicated that traffic stop; is that correct?
[Officer]: Yes.
[Appellant]: And those two very specific reasons are she, one, disregarded a traffic control device; and, two, you wanted to do a welfare check. Is that correct?
[Officer]: I believe that’s in the reason part of the LEADRS, but it also – in the PC narrative, it also states the possible intoxication.
. . . .
[Appellant]: And at a prior hearing, when you testified under oath, we talked about this case and you gave two reasons that you stopped Ms. Wall; disregarding a traffic control device and checking on her welfare. Is that correct?
[Officer]: Yes.
[Appellant]: And as a matter of fact, I specifically asked you, “Were there any other reasons to stop her?” And you stated, “No.” Do you recall that?
[Officer]: I believe so.
[Appellant]: Okay. I also asked you precisely when did this incident turn into a DWI investigation. And your response then was only after you made contact with her and you went into your – your clues of intoxication, odor, that type of thing. Do you recall that?
[Officer]: Yes.
[2 RR 15, 17-18]
Here, the record clearly supports the trial court’s finding that Appellant’s driving was not reasonable suspicion of DWI. [CR 104-05] During his testimony at the suppression hearing, Officer Padgett testified that he did not have reasonable suspicion that Appellant was driving while intoxicated. 2 RR 15, 17-18] Therefore, when the appellate court viewed the evidence in the light most favorable to the trial court’s ruling, the court should have affirmed the trial court’s finding. See Kerwick , 393 S.W.3d at 273.
As stated in Terry v. Ohio , reasonable suspicion only exists when a police officer reasonably concludes that “criminal activity may be afoot.” 392 U.S. at 30. *20 Officer Padgett stated under examination from both the State and Appellant that he did not suspect DWI until he stopped Appellant’s vehicle and made contact with her. [2 RR 15, 17-18] The officer testified that the only reasons he listed for stopping Appellant’s vehicle were (1) disregarding a traffic control device and (2) welfare check. [2 RR 17-18] Only after further examination from the prosecutor did Officer Padgett state Appellant’s driving habits led him to suspect DWI. [2 RR 15] Clearly, based on his own testimony, Officer Padgett did not have reasonable suspicion to stop Appellant’s vehicle on the basis of DWI. Although the court of appeals pointed out that Officer Padgett testified to the factors that he considered justified his stop of Appellant’s vehicle on suspicion of DWI, this testimony came after Officer Padgett stated that he did not suspect DWI until after he approached her vehicle. [2 RR 15]
As such, the appellate court erroneously determined that when viewing the evidence in the light most favorable to the trial court’s ruling that the trial court’s determination that Officer Padgett did not possess reasonable suspicion to stop Appellant’s vehicle was not supported by the record. Wall , 2015 WL 2169307, at *5.
CONCLUSION
The Second District Court of Appeals erroneously determined that Officer Padgett had reasonable suspicion to stop Appellant’s vehicle on the basis of DWI. *21 First, after reviewing the evidence, the trial court found that the evidence did not support the reasonable suspicion argument. Second, the evidence presented at the trial court does not support a determination by the appellate court that the officer had reasonable suspicion to temporarily detain Appellant. The trial court’s findings of fact are supported by the record and therefore, should be dispositive of the ruling. See Ford , 158 S.W. 3rd at 493. This Court should reverse the Fort Worth Court of Appeal’s opinion and hold that the trial court’s finding that the officer did not have reasonable suspicion to stop Appellant’s vehicle on the basis of DWI was correct and supported by the record.
PRAYER
Appellant prays that her petition be granted and that the Court of Appeals’ judgment be reversed in part as it applies to the officer having reasonable suspicion of DWI to stop Appellant’s vehicle and render the judgment that the lower court should have rendered (i.e., reversing Appellant’s conviction). Alternatively, Appellant prays that the court of appeals’ judgment affirming the trial court’s judgment be reversed.
Respectfully submitted, ___________________________ Jason A. Zendeh Del Lead Counsel for Appellant The Zendeh Del Law Firm 7600 San Jacinto Place, Suite 200 Plano, Texas 75024 Telephone (214) 919-3600 Facsimile (214) 919-3599 Jason@zenlawfirm.com State Bar Number 24044988 CERTIFICATE OF COMPLIANCE I certify that this document contains 3,494 words.
___________________________ Jason A. Zendeh Del CERTIFICATE OF SERVICE A copy of Appellant’s petition for discretionary review has been sent to Denton County District Attorney’s Office, Attn: Appellate Division, via fax (940) 349-2601, on the dame date as filing.
___________________________ Jason A. Zendeh Del *23 APPENDIX- COURT OF APPEALS’ OPINION
17! *24 2015 WL 2169307
Only the Westlaw citation is currently available.
SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. II. FACTUAL AND PROCEDURAL BACKGROUND [3] Officer Corey Padgett, driving his patrol unit, approached DO NOT PUBLISH TEX. R. APP. P. 47.2(B) an intersection where he observed Wall stopped at a Court of Appeals of Texas, Fort Worth. flashing yellow light. Wall remained stopped for several seconds, and cross-traffic, which had a flashing red light, Lisa D. Wall, Appellant drove warily through the intersection when Wall did not. v. After a few seconds, Wall drove through the intersection, The State of Texas, State and Officer Padgett followed her. NO. 02–13–00552–CR | DELIVERED: May 7, 2015 As Wall approached another intersection with a flashing yellow light, she braked hard but late, coming to an FROM COUNTY CRIMINAL COURT NO. 4 OF almost complete stop in the middle of the intersection. DENTON COUNTY, TRIAL COURT NO. CR–2012– Before her vehicle completely stopped, Wall accelerated 01008–D through the intersection, changed lanes, and made a U- turn. Based on Wall’s curious driving behavior, Officer Attorneys and Law Firms Padgett initiated a traffic stop. Jason Zendeh Del, Plano, TX, for Appellant. When Officer Padgett began talking with Wall, he observed that her eyes were glassy and red, her speech Paul Johnson, Dist Atty., Catherine Luft, Asst. Dist. Atty., was slurred, and that she had a slight smell of alcohol. Denton, TX, for State. Officer Padgett administered standard field sobriety tests, and Wall displayed six clues of intoxication on the PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, horizontal gaze nystagmus test. Officer Padgett arrested JJ. Wall for driving while intoxicated, and a subsequent
blood draw revealed that Wall had a blood alcohol MEMORANDUM OPINION [1] concentration of .16. Wall filed a motion to suppress evidence seized as a result SUE WALKER, JUSTICE of Officer Padgett’s traffic stop, arguing that Officer
Padgett lacked reasonable suspicion to stop her vehicle. At the suppression hearing, Officer Padgett testified that Wall’s reaction to the two lights had made him suspect I. INTRODUCTION [2] that she was intoxicated. He explained that stopping at a flashing yellow light is not normal, even if it is not a traffic violation to do so. From his training, Officer *1 Appellant Lisa D. Wall appeals her conviction for Padgett knew that intoxicated drivers often fail to follow driving while intoxicated. After the trial court denied her traffic signals, and he considered a driver’s inability to motion to suppress evidence, Wall pleaded no contest. respond properly to a flashing yellow light to be a big The trial court assessed her punishment at 300 days’ indicator of intoxication. In fact, Officer Padgett had confinement, which the court suspended; the trial court made prior DWI stops at a flashing yellow light “at that placed Wall on community supervision for fifteen exact area” of the road that Wall was travelling. Given months. Wall perfected this appeal. Wall’s driving behavior and the fact that it was around 2:00 a.m. on a weekend day in a neighborhood with many In her sole issue, Wall argues that the trial court erred by bars, Officer Padgett suspected that Wall was intoxicated. denying her motion to suppress. The State raises a cross- point, asserting that although the trial court correctly *2 The trial court admitted and reviewed a video denied Wall’s motion to suppress, the denial was proper recording of the traffic stop. After the hearing, the trial on an alternative ground rejected by the trial court—that court denied Wall’s suppression motion. In its findings of the stop of Wall’s vehicle was justified based on the fact and conclusions of law, the trial court determined that arresting officer’s reasonable suspicion that Wall was Wall’s driving did not give rise to reasonable suspicion driving while intoxicated. Because we sustain Wall’s that she was driving while intoxicated. But the trial court issue but also sustain the State’s cross-point, we will concluded that Officer Padgett could have stopped Wall affirm the trial court’s judgment. for either of the two traffic violations that Officer Padgett
had observed: Wall’s disregard of a traffic control device !
and Wall’s U-turn, which the trial court considered too novo unless its explicit fact findings that are supported by wide because Wall allegedly straddled the turning lane’s the record are also dispositive of the legal ruling. Id. at white line in the turn. 818. We must uphold the trial court’s ruling if it is
supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App.2007); Armendariz v. State, 123
III. STANDARDS OF REVIEW S.W.3d 401, 404 (Tex.Crim.App.2003), cert. denied, 541 U.S. 974 (2004).
A. MOTION TO SUPPRESS
We review a trial court’s ruling on a motion to suppress
evidence under a bifurcated standard of review. Amador B. STATUTORY CONSTRUCTION v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 Statutory construction is a question of law that we review (Tex.Crim.App.1997). In reviewing the trial court’s de novo. Yazdchi v. State, 428 S.W.3d 831, 837 decision, we do not engage in our own factual review. (Tex.Crim.App.2014). In construing a statute, we seek to Romero v. State, 800 S.W.2d 539, 543 effectuate the collective intent or purpose of the (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 legislators who enacted the legislation. Id. We look first (Tex.App.–Fort Worth 2003, no pet.). The trial judge is to the statute’s literal text, and we read words and phrases the sole trier of fact and judge of the credibility of the in context and construe them according to the rules of witnesses and the weight to be given their testimony. grammar and common usage unless they have acquired Wiede v. State, 214 S.W.3d 17, 24–25 technical or particular meaning. Id. When statutory (Tex.Crim.App.2007); State v. Ross, 32 S.W.3d 853, 855 language is clear and unambiguous, we give effect to its (Tex.Crim.App.2000), modified on other grounds byState plain meaning unless to do so would lead to absurd v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006). consequences that the legislature could not have possibly intended. Id. at 837–38. 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 IV. THE TRIAL COURT’S FINDINGS AND evaluation of credibility and demeanor. Amador, 221 CONCLUSIONS S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108– *3 The trial court’s findings of fact and conclusions of 09 (Tex.Crim.App.2006); Johnson v. State, 68 S.W.3d law included the following: 644, 652–53 (Tex.Crim.App.2002). Concerning questions of historical fact, even when a video tape of the stop The Court finds the driving of the defendant is not exists, the trial court’s factual determinations are entitled reasonable suspicion of driving while intoxicated. to almost total deference so long as they are supported by Caution in entering an intersection is proper. The the record. SeeTucker v. State, 369 S.W.3d 179, 185 Defendant sat at the intersection for 26 seconds that the (Tex.Crim.App.2012); Montanez v. State, 195 S.W.3d [sic] Officer Padgett could observe and that is not 101, 109 (Tex.Crim.App.2006). Concerning application- obstructing a highway. of-law-to-fact questions that do not turn on the credibility and demeanor of the witnesses, we review the trial court’s But the court finds the defendant could be stopped for rulings on those questions de novo. Amador, 221 S.W.3d disregarding the traffic control device and making a at 673; Estrada v. State, 154 S.W.3d 604, 607 wide turn over the white line. (Tex.Crim.App.2005); Johnson, 68 S.W.3d at 652–53. .... Stated another way, when reviewing the trial court’s
ruling on a motion to suppress, we must view the The Court therefore denies the motion to suppress. evidence in the light most favorable to the trial court’s ruling. Tucker, 369 S.W.3d at 185; Wiede, 214 S.W.3d at
24; State v. Kelly, 204 S.W.3d 808, 818
(Tex.Crim.App.2006). When the trial court makes explicit
fact findings, we determine whether the evidence, when V. LAW ON WARRANTLESS DETENTIONS viewed in the light most favorable to the trial court’s The Fourth Amendment protects against unreasonable ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19. We then review the trial court’s legal ruling de searches and seizures by government officials. U.S. !
Const. amend. IV; Wiede, 214 S.W.3d at 24. To suppress 498, 503–04 (Tex.App.–Fort Worth 2008, pet. ref’d) evidence because of an alleged Fourth Amendment (following cases that interpret the statute as proscribing, violation, the defendant bears the initial burden of not just a movement, but an unsafe movement).
producing evidence that rebuts the presumption of proper
police conduct. Amador, 221 S.W.3d at 672; seeYoung v.
State, 283 S.W.3d 854, 872 (Tex.Crim.App.), cert.
denied, 558 U.S. 1093 (2009). A defendant satisfies this V. REASONABLE SUSPICION OF DRIVING burden by establishing that a search or seizure occurred WHILE INTOXICATED without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the burden of proof *4 As detailed below, the evidence—viewed in the light shifts to the State, which is then required to establish that most favorable to the trial court’s finding that the the search or seizure was conducted pursuant to a warrant evidence supported a traffic-offense stop of Wall for or was reasonable. Id. at 672–73; Torres v. State, 182 disregarding a traffic control device or for making an S.W.3d 899, 902 (Tex.Crim.App.2005); Ford v. State, overly wide U-turn and viewed in the light most favorable 158 S.W.3d 488, 492 (Tex.Crim.App.2005). to its finding that the evidence did not support a reasonable suspicion that Wall was driving while To justify a brief detention for investigative purposes, the intoxicated—does not support these findings. SeeKelly, officer must be able to articulate something more than an 204 S.W.3d at 820–21 (holding evidence viewed in light “inchoate and unparticularized suspicion or ‘hunch.’ ” most favorable to trial court’s ruling did not support it). In Foster v. State, 326 S.W.3d 609, 613–14 (Tex.Crim.App. fact, the video from Officer Padgett’s dash cam 2010) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, indisputably negates the trial court’s findings that Wall 1883 (1968)). Specifically, the officer must have some committed the traffic offenses of disregarding a traffic minimal level of objective justification for making the control device and making an overly wide turn over the stop; when the officer can “point to specific and white line. SeeTucker, 369 S.W.3d at 185 (“If the video articulable facts which, taken together with rational evidence does not support the trial court’s conclusion, inferences from those facts, reasonably warrant [the] then the court of appeals should reverse.”); State v. intrusion” on the freedom of the person being detained, an Houghton, 384 S.W.3d 441, 446 (Tex.App.–Fort Worth investigative detention is reasonable. Id. (citing Terry, 2012, no pet.) (“We thus give almost total deference to 392 U.S. at 21); seeDerichsweiler v. State, 348 S.W.3d the trial court’s factual determinations unless the video 906, 914 (Tex.Crim.App.2011); Brother v. State, 166 recording indisputably contradicts the trial court’s S.W.3d 255, 257 (Tex.Crim.App.2005). A brief intrusion findings.”). is warranted, for instance, where the officer reasonably suspects that the person detained actually is, has been, or Looking first to whether Wall’s reaction to the flashing soon will be engaged in criminal activity. Derischweiler, yellow light constituted a traffic violation, the 348 S.W.3d at 914; Brother, 166 S.W.3d at 257. The transportation code simply states that a driver facing a reasonableness of a given detention turns on the totality of flashing yellow light “may” proceed with caution. the circumstances, which considers the public and private See Tex. Transp. Code Ann. § 544.008(b). Nothing in the interests that are at stake. Brother, 166 S.W.3d at 259 n.6. provision proscribes stopping or excessively decelerating at a flashing yellow light. See id. Generally, the term An officer has probable cause to stop and arrest a driver if “may” indicates an element of discretion rather than he observes the driver commit a traffic offense. State v. compulsion, which is better communicated with words Gray, 158 S.W.3d 465, 469–70 (Tex.Crim.App.2005); like “shall.” See, e.g.,Ford v. State, 305 S.W.3d 530, 539 seeState v. Ballman, 157 S.W.3d 65, 70 (Tex.App.–Fort (Tex.Crim.App.2009) (discussing difference between Worth 2004, pet. ref’d). Relevant here, the transportation “may” and “must” or “shall”). For example, in the code provides: “The operator of a vehicle facing a preceding subsection of the same statute, the flashing yellow signal may proceed through an transportation code states that a driver facing a flashing intersection or past the signal only with caution.” Tex. red signal “shall” stop. See Tex. Transp. Code Ann. § Transp. Code Ann. § 544.008(b) (West 2011). Texas law 544.008(a) (West 2011); see alsoYazdchi, 428 S.W.3d at governing U-turns on a divided highway and not at an 837 (holding that words are interpreted in context); Ford, intersection, as in this case, requires that the turn be made 305 S.W.3d at 539 (discussing consistent use of the term at a location where the dividing physical barrier allows “may” throughout the article relevant there). Giving the and be made safely and not at the crest of a hill or in the may-proceed-with-caution language of section 544.008(b) middle of a curve. See Tex. Transp. Code Ann. §§ its plain meaning, Wall’s overreaction to the flashing 545.063(b)(1), 545.102, 545.103 (West 2011). Regarding yellow light, although unusual, did not violate that lane compliance, a violation for failure to maintain a section. See Tex. Transp. Code Ann. § 544.008(b). The single lane requires that a driver’s deviation from a lane evidence, viewed in the light most favorable to the trial be made in an unsafe manner. See Tex. Transp. Code Ann. court’s finding that Wall disregarded a traffic-device, § 545.060(a) (West 2011); Fowler v. State, 266 S.W.3d does not support this finding. SeeYazdchi, 428 S.W.3d at !
837 (holding that statutes are reviewed de novo); Amador, flashing-yellow-light intersection were contextualized by 221 S.W.3d at 673 (de novo review of application-of-law- Officer Padgett’s testimony that he observed Wall driving to-fact questions); Estrada, 154 S.W.3d at 607 (same); at 2:00 a.m. on a weekend in a neighborhood with bars. Johnson, 68 S.W.3d at 652–53 (same). According to Officer Padgett, intoxicated drivers are often
confused by flashing traffic control signals, and he noted Looking next to whether Wall’s U-turn constituted a that he had made prior DWI stops at a flashing yellow traffic offense, the video does not support the trial court’s light in “that exact area” of the road that Wall was finding that it did. Although Wall traversed the turning travelling. Officer Padgett thus articulated something lane’s white line while entering the turning lane, she did more than an “inchoate and unparticularized suspicion or not re-cross it prior to or during her U-turn. Wall made ‘hunch.’ ” Foster, 326 S.W.3d at 613–14. Considering the the U-turn at a proper opening in the barrier and not at the totality of the circumstances, Officer Padgett possessed crest of a hill or near a curve. See Tex. Transp. Code Ann. “some minimal level of objective justification for making §§ 545.063(b)(1); 545.102. No cars were near, and there the stop” because he pointed to specific and articulable is no evidence the turn was done in an unsafe manner. facts—Wall’s peculiar driving through two flashing- See Tex. Transp. Code Ann. § 545.103. Thus, even yellow-light intersections, the fact that intoxicated drivers assuming Wall re-crossed the right line or prolonged her are often confused by flashing-light intersections, the fact transition across it, there is no evidence that the that Officer Padgett had made other DWI arrests in this movement was unsafe, and thus it was not a violation. See very location at the flashing-light intersections, the fact Tex. Transp. Code Ann. §§ 545.060(a); Fowler, 266 that Wall was driving at 2:00 a.m. on a weekend in a S.W.3d at 503–04; see also Tex. Transp. Code Ann. § location near bars—which, taken together with rational 545.103 (requiring all turns and movements be done inferences from those facts, provided reasonable safely). Other than the video, there was no evidence of suspicion that Wall was engaged in criminal activity, Wall’s U-turn, and Officer Padgett did not mention, either DWI. See Id. (citing Terry, 392 U.S. at 15); see in his affidavit or in his testimony, that Wall’s U-turn was alsoDerichsweiler, 348 S.W.3d at 914; Brother, 166 improperly performed. Thus, again, giving these S.W.3d at 257. The evidence, viewed in the light most transportation code sections their plain meaning, no favorable to the trial court’s finding that Officer Padgett evidence exists in the record that Wall violated them. The did not possess reasonable suspicion to initiate a evidence, viewed in the light most favorable to the trial temporary detention of Wall, does not support this court’s finding, does not support the trial court’s finding finding. SeeState v. Kerwick, 393 S.W.3d 270, 273 that Wall’s U-turn constituted a traffic violation. (Tex.Crim.App.2013) (“[R]easonable suspicion is a SeeYazdchi, 428 S.W.3d at 837 (statutes reviewed de mixed question of law that is reviewed de novo on novo); Amador, 221 S.W.3d at 673 (de novo review of appeal.”); Amador, 221 S.W.3d at 673 (noting de novo application-of-law-to-fact questions); Estrada, 154 review of application-of-law-to-fact questions); Estrada, S.W.3d at 607 (same); Johnson, 68 S.W.3d at 652–53 154 S.W.3d at 607 (same); Johnson, 68 S.W.3d at 652–53 (same); see alsoTucker, 369 S.W.3d at 185 (holding that (same).
appellate courts cannot uphold a finding if the video
record does not support it); Houghton, 384 S.W.3d at 446 We overrule the portion of Wall’s sole issue asserting that (same). we should not affirm the denial of her motion to suppress
on the ground that Officer Padgett possessed reasonable *5 Having determined that the traffic-offense findings and suspicion to stop her. We sustain the State’s cross-point conclusions made by the trial court in denying Wall’s challenging the trial court’s finding and conclusion that motion to suppress are not supported by the evidence, we Officer Padgett did not possess reasonable suspicion to sustain the portion of Wall’s issue challenging these initiate a temporary detention of Wall. We affirm the trial findings. court’s denial of Wall’s motion to suppress on this theory.
SeeStevens, 235 S.W.3d at 740 (holding that appellate We next address Wall’s alternative argument and the courts may uphold a trial court’s judgment under any State’s cross-point. Wall alternatively argues that we applicable theory of law supported by the record); cannot affirm the trial court’s denial of her motion to Armendariz, 123 S.W.3d at 404 (same).
suppress on the ground that Officer Padgett possessed
reasonable suspicion that Wall was engaged in the
criminal activity of DWI because the trial court correctly
found and concluded that he did not. The State argues that VI. CONCLUSION this finding by the trial court is not supported by the evidence. *6 Having determined that the trial court’s denial of Wall’s motion to suppress was proper based on the theory Wall’s prolonged stop at one flashing-yellow-light that Officer Padgett possessed reasonable suspicion to intersection and her delayed application of her brakes and initiate a temporary detention of Wall, we affirm the trial quick, almost complete stop in the middle of the next court’s judgment. !
Not Reported in S.W.3d, 2015 WL 2169307 !
All Citations
Footnotes!
! See Tex.!R.!App.!P.!47.4.!
1 ! ! ! This! case! was! originally! submitted! without! oral! argument! on! Friday,! May! 30,! 2014,! before! a! panel! consisting! of! Chief! 2 ! Justice!Livingston,!Justice!Gardner,!and!Justice!Gabriel.!The!court,!on!its!own!motion!on!January!15,!2015,!ordered!this!case! ! reset!without!oral!argument!on!February!5,!2015;!assigned!this!case!to!a!new!panel,!consisting!of!Chief!Justice!Livingston,! Justice!Walker,!and!Justice!Gabriel;!and!assigned!the!undersigned!to!author!the!opinion.! ! As!set!forth!below,!the!events!leading!up!to!the!stop!were!recorded!by!Officer!Padget’s!dash!cam!video!recorder;!we!have! 3 ! reviewed!the!video.! ! !
!
End$of$Document$ ©!2015!Thomson!Reuters.!No!claim!to!original!U.S.!Government!Works.! $ ! !
[2] ! Appellant’s brief will not focus on this theory because the court of appeals held that the officer did not have reasonable suspicion to stop Appellant’s vehicle on the basis of committing a traffic offense. However, Appellant will brief this issue if this Court so requests.