TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00286-CR
The State of Texas, Appellant
v.
Lindsey Egbert, Appellee
FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
NO. C-1-CR-15-204869, HONORABLE BRANDY MUELLER, JUDGE PRESIDING
ORDER AND MEMORANDUM OPINION
PER CURIAM
The State appeals the trial court’s order granting appellee Lindsey Egbert’s motion
to suppress evidence obtained in connection with her traffic stop, detention, and arrest for driving
while intoxicated (DWI). The State contends that the trial court abused its discretion in suppressing
the evidence because the pre-trial evidence contained specific, articulable facts to support the
arresting officer’s initial stop of appellee for reasonable suspicion of criminal activity or,
alternatively, that we must abate the appeal and remand for supplemental fact findings. Because
there are insufficient factual findings for us to conduct our review, we abate this appeal and remand
this cause to the trial court for additional findings.
BACKGROUND
At the hearing on appellee’s motion to suppress, the State called Deputy Ralph
Cisneroz to testify and played for the court a video from the deputy’s dashboard camera. After the
close of evidence, the State argued that appellee’s motion should be denied because the evidence
supported the deputy’s stop of appellee based on his reasonable suspicion that she (1) committed two
traffic violations, see Tex. Transp. Code §§ 545.062(a) (“An operator shall, if following another
vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed
of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without
colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the
highway.”), .152 (“To turn left at an intersection or into an alley or private road or driveway, an
operator shall yield the right-of-way to a vehicle that is approaching from the opposite direction and
that is in the intersection or in such proximity to the intersection as to be an immediate hazard.”), and
(2) was driving while intoxicated.
After the hearing and pursuant to the State’s request, the trial court made findings of
fact and conclusions of law. Among the findings of fact were the following:
• Deputy Cisneroz testified to speculating before the stop or arrest, that in
observing [Defendant]’s vehicle he thought that because the Defendant seemed
to be driving too close to the vehicle ahead of hers, that the Defendant was
following someone, in an effort to help her (the Defendant) on the road,
because she (the Defendant) had had too much to drink. Deputy Cisneroz
testified with regard to his speculation, that the driver may have asked
another person to “either follow or lead me to where I need to go in case
something happens.”
• Deputy Cisneroz further testified that the Defendant was following the other
car “extremely closely” and that it was “extremely dangerous.”
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• [Cisneroz] stated that he observed the Defendant cross the northbound lanes
of Lamar into a gas station on the other side of the road, hesitating as she
made the left turn. Officer Cisneroz testified that this caused a northbound
vehicle to aggressively brake and move into another lane to avoid a collision.
• The video evidence seems to contrarily show, that while there was a car
approaching from the north, it was not close enough in proximity to
Defendant’s vehicle to cause a traffic hazard.
• The dash cam video evidence at the hearing showed the Defendant’s vehicle
following the lead car at 27 miles per hour. The video further showed the
roadway to be dry and well lit by streetlights with a speed limit of 35 mph.
The video did show the Defendant’s vehicle behind another vehicle, but it did
not appear to the Court that the Officer was close enough to observe whether
the distance was too close or that the driving was hazardous.
• Deputy Cisneroz’s testimony was not corroborated by the video evidence.
Based on its findings of fact, the court made the following conclusions of law:
The Court did not find there to be sufficient probable cause of a violation of the
Transportation Code or a reasonable basis, based on the totality of the circumstances,
for the stop. The Court considered whether there was sufficient reasonable suspicion
for the stop.
***
In this case, the Court concluded that the basis for the stop was vague and insufficient
and further, not supported or corroborated by the evidence. In addition, the evidence
conflicted with the State’s assertion that defendant’s driving was “extremely
dangerous” or otherwise hazardous.
On appeal, the State contends that the trial court abused its discretion in suppressing
the evidence because the court’s findings and conclusions pertaining to whether appellee was
maintaining a safe following distance are not entitled to any deference. Specifically, the State takes
issue with the trial court’s finding that the deputy was not close enough to observe whether
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appellee’s following distance was unsafe in light of the videotape, which “clearly shows that [the
deputy] was close enough to observe.” In an alternate issue, the State requests that we abate the
appeal and remand to the trial court for supplemental factual findings on two “key components” of
the deputy’s testimony: (1) appellee’s alleged failure to yield to oncoming traffic and (2) the deputy’s
reasonable suspicion that appellee was driving while intoxicated.
DISCUSSION
At a suppression hearing, a trial court examines the “totality of the circumstances”
to determine whether the State has shown sufficient historical facts that, viewed from the standpoint
of an objectively reasonable police officer, amount to reasonable suspicion that a particular person
was engaged in criminal activity and that, therefore, an investigatory stop was justified. See State
v. Mendoza, 365 S.W.3d 666, 669–70 (Tex. Crim. App. 2012); Martinez v. State, 348 S.W.3d 919,
924 (Tex. Crim. App. 2011). Reasonable suspicion exists if the officer has specific, articulable facts
that, when combined with rational inferences from those facts, would lead the officer to reasonably
conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.
Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The “totality of the circumstances”
requires consideration of the “whole picture,” not merely isolated components of it. United States
v. Sokolow, 490 U.S. 1, 8–10 (1989); Woods v. State, 956 S.W.2d 33, 37–8 (Tex. Crim. App. 1997)
(“We recognize that there may be instances when a person’s conduct viewed in a vacuum, appears
purely innocent, yet when viewed in light of the totality of the circumstances, those actions give rise
to reasonable suspicion.”).
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When reviewing a trial court’s ruling on a motion to suppress, we review its factual
findings for abuse of discretion and its legal rulings about the existence of reasonable suspicion
de novo. Mendoza, 365 S.W.3d at 669. The reviewing court gives “almost total deference” to the
trial court’s findings of historical facts that are supported by the record, especially those findings that
are based on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007). With respect to mixed questions of law and fact (i.e., “application of law to fact
questions”), if the resolution of them turns on an evaluation of credibility or demeanor, we apply the
same “almost total deference,” but for mixed questions that do not depend upon credibility and
demeanor, we apply a de novo standard of review. Id. When the trial court makes a finding of fact
that is derived from video evidence admitted at a suppression hearing, that finding is also generally
entitled to “almost total deference” if supported by the record, due to the trial court’s primary “fact-
finding function.” See Carter v. State, 309 S.W.3d 31, 40 & n.47 (Tex. Crim. App. 2010); Montanez
v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006); cf. Carmouche v. State, 10 S.W.3d 323,
332 (Tex. Crim. App. 2000) (declining to give “almost total deference” to trial court’s implicit
findings about defendant’s consent to search under “unique circumstances” of case where videotape
presented “indisputable visual evidence contradicting essential portions” of fact findings).
If a trial court makes findings of fact but they are inadequate to provide the appellate
court with a basis upon which to review the trial court’s application of the law to the facts and to
resolve the dispositive legal question, we must remand to the trial court for it to make more specific
findings. See Mendoza, 365 S.W.3d at 670; State v. Elias, 339 S.W.3d 667, 676–77 (Tex. Crim.
App. 2011); see also State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (noting that
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“essential findings” mean “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”). Our
review of the trial court’s factual findings here leads us to conclude that they are insufficient for a
de novo review of the dispositive legal question of whether the deputy had reasonable suspicion
to stop appellee.
First, most of the relevant “Factual Findings” made by the trial court merely recite
what Deputy Cisneroz’s testimony was rather than make any historical findings of fact based on that
testimony, including any findings about credibility. See Mendoza, 365 S.W.3d at 672 (remanding
for supplemental findings where trial court’s factual findings merely recited testimony but did
not find many historical facts, including credibility assessments and whether officer’s beliefs and
feelings were objectively reasonable). For instance, Finding 3 states, “Deputy Cisneroz testified
that he observed the Defendant’s vehicle ‘aggressively’ following a vehicle in front of it . . . [and]
that it was traveling . . . too close to the vehicle in front of it; at one point testifying the vehicle ahead
of the Defendant was less than half a car-length away” (first and third emphases added). In other
findings, the trial court “found” that the deputy (1) “testified to speculating . . . [that] he thought that
. . . the Defendant was following someone [] in an effort to help her (the Defendant) on the road,
because she (the Defendant) had had too much to drink” (Finding 4, emphases added); (2) “testified
that the Defendant was following the other car ‘extremely closely’ and that it was ‘extremely
dangerous’” (Finding 5, emphasis added); and (3) “stated that he observed the Defendant cross the
northbound lanes of Lamar into a gas station on the other side of the road, hesitating as she made the
left turn . . . [and] testified that this caused a northbound vehicle to aggressively brake and move into
another lane to avoid a collision” (Finding 6, emphases added). “[A]ny reviewing court can read the
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record and see [Deputy Cisneroz’s] testimony, but did the trial court believe that testimony?” Id.
at 671. We cannot tell from this record, because the trial court’s “findings” do not fulfill its fact-
finding role but merely summarize the testimony.
Secondly, in two of the remaining findings,1 the trial court noted that (1) the video
evidence “seems to contrarily [to Deputy Cisneroz’s testimony] show . . . that the approaching [car]
. . . was not close enough in proximity to Defendant’s vehicle to cause a traffic hazard” (Finding 7,
emphases added) and (2) “it did not appear to the Court [from the video evidence] that the Officer
was close enough to observe whether the distance was too close or that the driving was hazardous”
(Finding 8, emphasis added).2 These noncomittal “findings” also do not aid our review—while the
video may “seem to show” particular scenarios that “appear” to the trial court to be true, did the
trial court find those scenarios to in fact be true, acting in its fact-finding role?
Thirdly, while finding that “Deputy Cisneroz’s testimony was not corroborated by
the video evidence” (Finding 9), the trial court does not specify which parts of his testimony were
not “corroborated” by the video. The trial court’s mere observation that the video and live testimony
conflict does not constitute a factual finding or fulfill the court’s fact-finding role. When faced with
1
The trial court made a total of nine factual findings. The first two are background findings,
irrelevant to the issues on appeal; Findings Three through Six merely summarize some of Deputy
Cisneroz’s testimony; Findings Seven and Eight provide the court’s findings about the video; and
Finding Nine states that “Deputy Cisneroz’s testimony was not corroborated by the video evidence.”
From these “findings,” the trial court concluded that there was no “reasonable basis, based on the
totality of the circumstances,” for the stop.
2
Deputy Cisneroz testified that appellee maintained “a car length or less than half a car
length” from the lead car and was “having to brake behind the car in front of [her] in order to prevent
[her car] from getting even closer.” He also testified that the vehicles were on the “thoroughfare”
of South Lamar, which has “a lot of businesses, a lot of gas stations, convenience stores, [and] where
cars are going to be coming in and out.”
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conflicting evidence, the trial court’s duty is to resolve those very conflicts. See, e.g., Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Yet, the trial court did not make any express findings
discrediting Deputy Cisneroz’s testimony, even reciting in its factual findings the deputy’s testimony
that (1) appellee’s hesitation when making her left turn “caused a northbound vehicle to aggressively
brake and move into another lane to avoid a collision” and (2) appellee’s following of the lead car
was “extremely dangerous.”3 Without express findings discrediting Deputy Cisneroz’s testimony,
we would have to imply that the trial court made such findings, which we may not do. See Mendoza,
365 S.W.3d at 672–73.
Moreover, with respect to the deputy’s testimony about appellee’s alleged unsafe left
turn, the video could neither have corroborated nor contradicted it: the deputy testified that he
watched appellee’s car through his side-view mirror once his vehicle passed hers and saw that the
oncoming car had to brake “aggressively” and “move into the middle lane in order to avoid [a]
collision” and that he heard the “screeching noise” of brakes. The video does not—and logistically
could not—depict these alleged events (or their absence), as they allegedly occurred behind the
deputy’s vehicle and out of the range of the dash-cam (and the video was not audio-enabled).
Nonetheless, the trial court “found” that the video “seems to contrarily show” that the oncoming
vehicle was “not close enough in proximity to Defendant’s vehicle to cause a traffic hazard.” The
trial court’s implied finding that appellee’s left turn was not unsafe is unsupported by the record
absent an express determination that Deputy Cisneroz’s testimony on the issue was not credible.
3
As correctly noted by the State, Deputy Cisneroz did not, in fact, testify that appellee’s
following distance was “extremely dangerous” but, rather, that her following of the lead car
was “extremely close [] for the speed that was being traveled at” and that she was “aggressively
following” the lead car.
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Finally, the trial court made no factual findings about the deputy’s testimony relating
to why he suspected that appellee was driving while intoxicated, apart from the issue of possible
traffic violations.4 The deputy testified that (1) “in [his] experience, there have been numerous times
where [he had] stopped cars doing such things [following another car extremely closely] and come
to realize that it was either the person in front or the person in back who thought they may have had
a little bit too much to drink”; (2) he was assigned at the relevant time to the DWI unit, having
received extra training for DWI detection; (3) he pulled over appellee during the “peak hours” for
DWI; and (4) South Lamar is a thoroughfare north and south from the downtown “bar district.”
Factual findings on this relevant testimony, including any applicable credibility determinations, are
essential to the “totality of circumstances” to which the law of reasonable suspicion must be applied.
See Cullen, 195 S.W.3d at 699 (defining “essential findings” as those adequate to provide appellate
court with basis upon which to review trial court’s application of law to facts); see also United States
v. Cortez, 449 U.S. 411, 418 (1981) (noting that “whole picture” assessment must be viewed and
weighed “not in terms of library analysis by scholars, but as understood by those versed in the field
of law enforcement); Woods, 956 S.W.2d at 38 (same). If a trial court errs in its determination of
which findings are legally dispositive of a motion to suppress, the appellate court must remand the
cause for entry of additional, specific findings of fact with respect to the dispositive issue. Elias,
339 S.W.3d at 674, 676 (holding that court entering findings of fact and conclusions of law must
4
The trial court did make a “finding” (Finding 4) about the deputy’s experience with other
drivers following too closely in the context of persons helping one another on the road after having
had too much to drink, but the “finding” merely summarizes (inaccurately) the deputy’s testimony
and so, as already explained, is in effect a non-finding.
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ensure that findings are “adequate and complete, covering every potentially dispositive issue that
might reasonably be said to have arisen in the course of the suppression proceedings.”). Rather
than considering the totality of the circumstances to determine whether the deputy could have
objectively and reasonably suspected that appellee was violating traffic laws or driving while
intoxicated, the trial court appeared to consider, piecemeal, whether the video objectively depicted
actual traffic violations.
The record simply does not contain sufficient factual findings from which we may
conduct our review of the dispostive legal question: whether the deputy had a reasonable suspicion
that appellee was engaged in criminal activity. Accordingly, we sustain the State’s alternate issue,
abate this appeal, and remand this cause for supplemental findings. See Tex. R. App. P. 44.4 (stating
that appellate court must direct trial court to correct remediable error if such error prevents proper
presentation of case to court of appeals).
CONCLUSION
We abate this appeal and remand the cause to the trial court for supplemental findings
consistent with this opinion.
It is ordered November 17, 2016.
Before Justices Puryear, Pemberton, and Field
Abated and Remanded
Filed: November 17, 2016
Do Not Publish
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