COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00429-CR
MICHAEL NNAMANI APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY
TRIAL COURT NO. 1342673
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MEMORANDUM OPINION1
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In one issue, Appellant Michael Nnamani appeals the trial court’s denial of
his motion to suppress. We affirm.
Background
Appellant was charged with driving while intoxicated (DWI) in August 2013.
See Tex. Penal Code Ann. § 49.04 (West Supp. 2016). Prior to trial, Appellant
1
See Tex. R. App. P. 47.4.
moved to suppress all tangible evidence and written or oral statements obtained
in connection with his detention and arrest on the grounds that police did not
have reasonable suspicion or probable cause to conduct the initial traffic stop.
Officer Nicholas Steppe of the Grand Prairie Police Department testified at
the suppression hearing that around midnight on August 27, 2013, he was
traveling westbound on Webb Lynn Road in a marked patrol car when he
observed three vehicles leave a neighborhood and travel south on Mirabella
Road at a “higher rate of speed.”2 After Officer Steppe turned around to follow
the vehicles, he observed all three vehicles turn right from Mirabella onto New
York Avenue and then head west. Two of the three vehicles then turned right to
head north on highway 360, while the third vehicle continued west on New York
Avenue. Officer Steppe thought it was strange that the drivers took such a
circuitous route, because they could have accessed northbound highway 360
directly by taking Webb Lynn Road instead.
Officer Steppe followed the two vehicles that went north on highway 360.
When the cars reached an intersection, he observed the car driven by Appellant
slow down as if it was going to make a right turn while “straddling the solid white
line of the actual turn lane itself” before making what Officer Steppe described as
an “abrupt movement to the left” and continuing north on highway 360.
2
While Officer Steppe testified that he could not determine the actual
speed that the cars were traveling, he estimated that the cars were traveling at
40 or 45 miles per hour. The posted speed limit at that location was 35 miles per
hour.
2
According to Officer Steppe, this was the last in a series of factors forming the
basis for his decision to initiate a traffic stop at that point. As Officer Steppe
explained:
After seeing, you know, the driving down Mirabella going north
on 360, as I stated, it didn’t make a whole lot of sense to me. But
what caused my initial reason for stopping him—was—it was
twofold. One, it was exceeding the speed limit. But when he made
the abrupt lane changes over the lane line, that was what initiated
the stop.
Officer Steppe considered that the driver could have had a medical
condition, he could have been lost, or he could have been intoxicated. Based on
his training, Officer Steppe testified, “People who are intoxicated sometimes
they’ll exceed the speed limit, straddle lane lines, weave, things of that nature.”
When asked if there was anything else that led him to suspect the driver was
intoxicated, he testified that those were his only reasons.
A video recording taken by the dashboard camera in Officer Steppe’s
patrol car was admitted into evidence. The video, which does not begin until
Officer Steppe was already following Appellant’s vehicle heading north on
highway 360, depicts Appellant’s vehicle slowing down as it approached an
intersection and then driving into a right-turn lane with its right blinker on. The
vehicle appears to straddle the white line demarking the right-turn lane before
adjusting to re-enter the right lane of highway 360 and continuing through the
intersection. At that point, Officer Steppe activated the lights on his patrol car
and pulled over Appellant.
3
The trial court denied the motion to suppress and adopted the findings of
fact and conclusions of law recommended by the magistrate who presided over
the hearing. Among its findings, the trial court found that Officer Steppe “made
the determination to stop and detain [Appellant] based on his belief that
[Appellant] had exceeded the speed limit as it drove south on Mirabella and that
[Appellant] straddled the solid white line of the turn lane and abruptly corrected
back into the primary lane of travel.” The trial court concluded that Officer
Steppe “had probable cause or reasonable suspicion to believe that [Appellant]
was violating a state traffic law. (Sections 545.351, 545.352, and 545.060 of the
Texas Transportation Code).” Appellant pleaded guilty pursuant to a plea-
bargain agreement and was assessed a $750 fine and sentenced to 90 days’
confinement in the Tarrant County jail, suspended for a period of 12 months’
community supervision.
Discussion
In one issue composed of two subissues, Appellant appeals the denial of
his motion to suppress. In his first subissue, Appellant asserts that the trial court
erred in finding reasonable suspicion and probable cause “of evidence of
speeding based on the conclusory nature of Officer Steppe’s testimony and lack
of specific articulable facts.” In his second subissue, Appellant asserts that the
trial court erred in finding reasonable suspicion and probable cause “for a
violation of section 545.060 of the Texas Transportation Code.”
4
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial
judge is the sole trier of fact and judge of the credibility of the witnesses and the
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006). 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 evaluation of credibility and demeanor.
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the credibility
and demeanor of the witnesses, we review the trial court’s rulings on those
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d
604, 607 (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 evidence in the light most favorable to the trial
5
court’s ruling. 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 viewed in the light most favorable to the
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.
We 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.
Id. at 818.
We must uphold the trial court’s ruling if it is supported by the record and is
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 S.W.3d 401, 404 (Tex. Crim. App.
2003), cert. denied, 541 U.S. 974 (2004).
I. The trial court’s findings and conclusions
We first address Appellant’s general complaint that the trial court’s findings
of fact and conclusions of law are “vague” and contain “weasel words.”
Appellant’s argument relies upon the court of criminal appeals’ decision in State
v. Mendoza, 365 S.W.3d 666, 671 (Tex. Crim. App. 2012), but that opinion is
distinguishable from the case at hand.
In Mendoza, the trial court granted the defendant’s motion to suppress
evidence on the basis that the arresting officer did not have reasonable suspicion
but it issued written findings that were ambiguous and contained no
determination of the officer’s credibility. Id. at 667–68. In its opinion, the court of
6
criminal appeals described the trial court’s use of words such as “believed,”
“noticed,” “stated,” “felt,” and “testified” to describe the officer’s testimony in its
findings as “weasel words,”3 which, along with “factual juxtapositions,”4 cast
3
Specifically, the trial court found that the officer “believed” the defendant
was “going at a high rate of speed,” “noticed the defendant’s vehicle weaving
within its lane,” “stated that the defendant’s car would continuously slow down
and brake,” “felt that the defendant’s car was going to hit another vehicle,” and
“testified that he stopped the defendant because she weaved within a lane a few
times, veered to the right and braked erratically.” Id. at 668. The trial court
concluded, “The Court finds that the facts of this case, (as seen on the video and
the testimony of Officer Davila) did not justify a stop of the defendant’s vehicle
and do not provide the police officer with sufficient reasonable suspicion to
believe that the defendant was intoxicated.” Id.
4
The court of criminal appeals explained its concern with the factual
juxtapositions as follows:
In addition, the trial judge also used a juxtaposition of
phrases and facts that creates more ambiguity in her findings. For
example, in her second factual finding, the trial judge states that
“Officer Davila believed the defendant was going at a high rate of
speed,” but she then contrasts that phrase with the additional fact
that he “did not ascertain the vehicle's speed by radar or by pacing
the vehicle.” In her fourth finding, the trial judge notes, “Officer Davila
stated that the defendant’s car would continuously slow down and
brake.” But she immediately contrasts that statement with the further
fact that “the video depicts Mesa Street as a roadway going downhill
with several curves.” And the video shows appellee braking as she
approaches each downhill curve and then taking her foot off the
brake as she moves into the curve. It is impossible to tell whether
the trial judge considered appellee’s braking “erratic” or appropriate
or whether she concluded that Officer Davila’s statement was an
objectively reasonable one based on his perception or an objectively
unreasonable one based upon her viewing of the video. And, in the
fifth finding, the trial judge noted that Officer Davila “felt” that
appellee’s car was going to hit another car “because it veered to the
right.” But that statement is immediately followed by a contrasting
statement: “There was no testimony indicating if defendant’s car
weaved out of her lane. There was no testimony about the proximity
7
doubt that the trial court “fully credited [the officer]’s version of events.” Id. at
671.
The findings of fact and conclusions of law here are not ambiguous and do
not present the problem present in Mendoza. The trial court’s pertinent findings
and conclusions are as follows:
Findings of Fact:
1. On August 27, 2013, shortly after midnight, Grand Prairie Police
Officer M. Steppe was on routine patrol in Grand Prairie, Tarrant
County, Texas, when he observed a vehicle being driven by the
Defendant which appeared to be following two other vehicles.
2. Officer Steppe is a certified police officer and has been employed
as a police officer for the city of Grand Prairie for approximately
eight and a half years. He is also an accident reconstruction
investigator and expert, a commercial vehicle enforcement
officer, standardized field sobriety test instructor, and a drug
recognition expert. In addition, Officer Steppe completed the
ARIDE class which stands for Advanced Roadside Impairment
Detection and Enforcement.
3. Officer Steppe observed the Defendant’s vehicle exiting a small
neighborhood at a high rate of speed. More specifically, Officer
Steppe determined that the Defendant’s vehicle was travelling
southbound on Mirabella faster than the 35 mile per hour posted
speed limit for that area. Officer Steppe estimated that the
Defendant was driving between 40 and 45 miles per hour down
Mirabella before coming to a stop at a stop sign at Mirabella and
New York Avenue. Officer Steppe was not able to confirm the
of the other car. The video shows a vehicle about two to three car
lengths in front of the defendant’s vehicle traveling in the far right
lane.” Indeed, looking at the video, it appears that appellee’s car was
two lanes away from and several car lengths behind the other car,
but if the trial judge concluded that Officer Davila reasonably felt that
appellee’s car did pose a danger to the other car, then that fact
would support a finding of reasonable suspicion. Id. at 672
(emphasis added).
8
speed of the Defendant’s vehicle with radar or pacing; his
estimation was based on following the Defendant’s vehicle and
trying to catch up to it.
....
8. Officer M. Steppe made the determination to stop and detain the
defendant based on his belief that the Defendant had exceeded
the speed limit as it drove south on Mirabella and that the
Defendant straddled the solid white line of the turn lane and
abruptly corrected back into the primary lane of travel.
....
Conclusions of Law:
....
2. Officer M. Steppe had probable cause or reasonable suspicion to
stop and detain the defendant for committing the offense of
vehicle failing to drive in a single lane and for exceeding the
posted speed limit.
....
12. The Court concludes that the “failure to maintain a single lane”
and “speeding” as bases for the stop and detention of the
defendant is supported by the evidence. Traffic offenses have
long been considered sufficient to justify a stop.
....
14. The Court concludes that the stop and detention of the
defendant was without a warrant, but that the officer had probable
cause or reasonable suspicion to believe that the defendant was
violating a state traffic law. (Sections 545.351, 545.352, and
545.060 of the Texas Transportation Code) Accordingly, the
Court concludes that the stop and detention of the defendant by
law enforcement was not in violation of the 4th and 14th
Amendments of the United States Constitution, Article 1, Section
9 of the Texas Constitution, and Article 38.23 [of the] Texas Code
of Criminal Procedure.
9
The trial court’s findings and conclusions more closely resemble those in
State v. Elias, 339 S.W.3d 667, 672 (Tex. Crim. App. 2011), than those in
Mendoza. In Elias, the trial court’s findings recounted the officer’s observations
of a van prior to stopping the van for its failure to signal an intent to turn right at
an intersection and concluded that the officer did not have reasonable suspicion
or probable cause. Id. In determining that the trial court’s findings were “explicit”
and suggested that the trial court felt the officer was credible, the court of criminal
appeals noted that a trial court is to state its “essential findings,” meaning
“findings of fact and conclusions of law adequate to provide an appellate court
with a basis upon which to review the trial court’s application of the law to the
facts.” Id. at 674.
The findings and conclusions issued by the trial court in this case make it
clear that the trial court found Officer Steppe’s testimony to be credible,
particularly as to Appellant’s act of speeding. The trial court’s findings detail
Officer Steppe’s observations that Appellant exited the neighborhood at a “high
rate of speed” and that he “determined” that the Defendant was driving faster
than the 35-mile-an-hour speed limit for that area. See, e.g., Mendoza, 365
S.W.3d at 671 (noting that the use of the word “observed” is a “strong verb” that
states an historical fact). These are not “weasel words,” especially when
combined with the trial court’s conclusions that Officer Steppe “had probable
cause or reasonable suspicion to stop and detain the defendant . . . for
exceeding the posted speed limit,” and that “speeding as a bas[i]s for the stop
10
and detention of the defendant [was] supported by the evidence.” The findings
are consistent with each other—there are no factual juxtapositions as described
in the Mendoza case—and with the trial court’s conclusions and ruling. Thus, we
decline to hold that the trial court’s findings are ambiguous or vague.5
II. Speeding
Appellant’s first subissue argues that Officer Steppe’s testimony was
conclusory and failed to provide specific, articulable facts to show that he had
reasonable suspicion or probable cause to detain Appellant for speeding.
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at
24. It is undisputed that this was a warrantless arrest, so the burden of proof
shifted from Appellant to the State, which was then required to establish that the
search or seizure was reasonable. Amador, 221 S.W.3d at 672–73; Torres v.
State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d
488, 492 (Tex. Crim. App. 2005).
The parties conflate reasonable suspicion and probable cause in their
briefs. A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880
5
Even if we were to find that the findings were too vague or ambiguous the
proper remedy would be to remand the case to the trial court for supplemental
findings. Mendoza, 365 S.W.3d at 673.
11
(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
Reasonable suspicion exists when, based on the totality of the circumstances,
the officer has specific, articulable facts that when combined with rational
inferences from those facts, would lead him to reasonably conclude that a
particular person is, has been, or soon will be engaged in criminal activity. Ford,
158 S.W.3d at 492. Probable cause is a higher standard and requires that the
officer have a reasonable belief that, based on facts and circumstances within
the officer’s personal knowledge, or of which the officer has reasonably
trustworthy information, an offense has been committed. Torres, 182 S.W.3d at
901–02. Like reasonable suspicion, probable cause must be based on specific,
articulable facts rather than the officer’s mere opinion. Id. at 902.
It is well-settled that a police officer may stop and detain a motorist who
commits a traffic violation in the officer’s presence. Rubeck v. State, 61 S.W.3d
741, 745 (Tex. App.—Fort Worth 2001, no pet.). A police officer has probable
cause to detain and arrest an offender when the officer sees an offense
committed in his presence. Id. Because reasonable suspicion is a lesser
standard than probable cause, when an officer has probable cause to detain a
suspect the officer has also satisfied the reasonable suspicion standard for
detention. Id. Once a police officer makes a bona fide stop for a traffic offense,
he may also investigate any other offense that he reasonably suspects has been
committed. Id.
12
Appellant challenges only the initial stop, not the continued detention for
the investigation of DWI. Specifically, Appellant asserts that Officer Steppe did
not articulate specific facts to support his decision to pull over Appellant, relying
on Ford, 158 S.W.3d at 492. But this case is distinguishable. In Ford, the only
testimony by the officer describing the circumstances leading up to a stop was
that he saw the defendant’s vehicle “following too close” behind another vehicle.
Id. at 491. The court of criminal appeals held that this testimony was too
“conclusory” because there were no facts in the record “allowing an appellate
court to determine the circumstances upon which [the officer] could reasonably
conclude that Ford actually was, had been, or soon would have been engaged in
criminal activity.” Id. at 493. In this case, Officer Steppe did provide specific,
articulable facts supporting his decision to stop Appellant.
It is a traffic offense for a vehicle operator to “drive at a speed greater than
is reasonable and prudent under the circumstances then existing.” Tex. Transp.
Code Ann. § 545.351(a) (West 2011). A posted speed limit is prima facie
evidence that a speed greater than the posted limit is not reasonable and prudent
and that speed is unlawful. Id. § 545.352 (West Supp. 2016). Appellant
particularly takes issue with the fact that Officer Steppe did not use radar to
confirm that Appellant was speeding and that Officer Steppe could not pinpoint
the exact speed at which Appellant was traveling. One of our sister courts has
held that in circumstances such as these, officers are not required to use radar to
determine that a driver is speeding. See Icke v. State, 36 S.W.3d 913, 915–16
13
(Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). In Icke, the court held that
reasonable suspicion was shown by the arresting officer’s testimony that he
formed the opinion that the defendant was speeding based upon his experience
and without the use of radar. Id. Although the officer confirmed his suspicion
through the use of radar, the court noted that the use of radar was not required to
show reasonable suspicion. Id. at 916 (holding the officer’s observation
“considered alone or in combination with the radar, rise[s] to the level of
reasonable suspicion”); see also Deramus v. State, No. 02-10-00045-CR, 2011
WL 582667, at *3 (Tex. App.—Fort Worth Feb. 17, 2011, no pet.) (mem. op., not
designated for publication) (“There is no statutory requirement that an officer
always use radar to confirm a vehicle’s speed, nor is it always possible for an
officer to do so.”).
Officer Steppe testified that when he first observed Appellant’s vehicle, it
was driving with two other vehicles at “a higher rate of speed” while exiting a
residential neighborhood. Officer Steppe testified that he estimated Appellant’s
speed to have been 40 or 45 miles per hour in a 35-mile-per-hour zone. Officer
Steppe based his determination in part on his experience as a traffic officer and
on the fact that he had to “[get] on it pretty good to catch up to them.” Officer
Steppe’s estimation that Appellant’s speed was above the speed limit was
sufficient to justify a traffic stop. Dillard v. State, 550 S.W.2d 45, 53 (Tex. Crim.
App. 1977) (op. on reh’g) (holding that observation of speeding violation provided
probable cause to authorize traffic stop and rejecting contention that an officer
14
must know the exact speed at which the defendant was traveling to prove a
speeding violation); Deramus, 2011 WL 582667, at *3 (holding officer’s testimony
that he estimated vehicle was going ten miles over the speed limit based on his
experience of viewing vehicles in the particular intersection, with no radar to
confirm the precise speed, was sufficient to justify traffic stop); see also Hesskew
v. Tex. Dep’t of Public Safety, 144 S.W.3d 189, 191 (Tex. App.—Tyler 2004, no
pet.) (“When a law enforcement officer observes a vehicle traveling what he
believes to be fifteen miles over the posted speed limit, a traffic stop is justified.”).
Applying the law to the facts of this case, we hold that reasonable suspicion
existed to justify the traffic stop for speeding.
In her dissent, Justice Dauphinot raises an important question, the answer
to which does not appear to have been addressed by the court of criminal
appeals or any of our sister courts. The dissent points out that “[r]easonable
suspicion . . . provides a ground for temporary detention to allow for further
investigation” and then questions how Officer Steppe could have continued
investigating the moving violation of speeding once it had occurred. Because
any such continuing investigation “would yield no evidence of that moving
violation” under these circumstances, the dissent reasons that the stop must be
justified not by reasonable suspicion, but by probable cause.
As discussed above, a number of courts, including our own, have found
that an officer’s testimony estimating the driver’s speed was sufficient to establish
reasonable suspicion and therefore justify the stop. See, e.g., Deramus, 2011
15
WL 582667 at *3; Icke, 36 S.W.3d at 915–16. But these cases have stopped
short of explaining how an officer could continue his investigation of a moving
violation by stopping the vehicle. While at first blush it may appear that an officer
would have no ability or reason to conduct further investigation between the time
he or she observed the violation and prior to issuing a citation, that is not always
or necessarily the case. Even in circumstances involving a traffic offense such
as speeding, further investigation could be conducted after the vehicle has been
stopped. For example, in this case, since the officer did not record the actual
speed of Appellant’s vehicle on radar, the officer could have questioned
Appellant about the speed at which Appellant believed—based upon his own
speedometer reading—he was travelling. Appellant’s response could yield
additional facts that convert reasonable suspicion into probable cause.
Furthermore, when questioned about the circumstances surrounding what
appeared to be use of excessive speed, Appellant could have related
circumstances to Officer Steppe that would factor into a determination of whether
the driver’s speed was “reasonable and prudent under the circumstances,” which
is the legal standard. Compare Tex. Transp. Code Ann. § 545.351(a), with id. §
545.352 (providing that a posted speed limit is only prima facie evidence that a
speed greater than the posted limit is not reasonable and prudent); see also,
Leming v. State, No. PD-0072-15, 2016 WL 1458242, at *3 (Tex. Crim. App.
2016) (“for a peace officer to stop a motorist to investigate a traffic infraction, as
is the case with any investigative stop, ‘proof of the actual commission of the
16
offense is not a requisite.’”) (quoting Drago v. State, 553 S.W.2d 375, 377 (Tex.
Crim. App. 1977)).
Because we hold that reasonable suspicion existed to justify the traffic stop
for speeding, we overrule Appellant’s first subissue.
III. Unsafe lane change
Appellant’s second subissue argues that Officer Steppe did not have
reasonable suspicion or probable cause to detain Appellant for violating section
545.060 of the transportation code. See Tex. Transp. Code Ann. § 545.060
(West 2011) (providing that a driver “shall drive as nearly as practical entirely
within a single lane and may not move from the lane unless that movement can
be made safely”). Because in overruling Appellant’s first subissue we have held
that reasonable suspicion existed to stop and detain Appellant for speeding, we
do not need to address his second subissue.
Conclusion
Having overruled the first subissue of Appellant’s sole issue on appeal, we
affirm the trial court’s judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: DAUPHINOT, GARDNER, and SUDDERTH, JJ.
DAUPHINOT, J., filed a dissenting opinion.
17
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 17, 2016
18
Michael Nnamani v. State
Combined Opinion