ACCEPTED
03-17-00333-Cr
21564467
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/2/2018 5:26 PM
JEFFREY D. KYLE
CLERK
Appellate Cause Numbers
03-17-00333-CR
03-17-00334-CR FILED IN
3rd COURT OF APPEALS
__________________________________________________________
AUSTIN, TEXAS
1/2/2018 5:26:15 PM
IN THE COURT OF APPEALS JEFFREY D. KYLE
FOR THE THIRD DISTRICT OF TEXAS Clerk
AT AUSTIN
__________________________________________________________
THE STATE OF TEXAS, Appellant
v.
BRANDOM GARRETT, Appellee
__________________________________________________________
On Appeal From the County Court at Law #2
Cause Numbers 2015CR1738 & 2015CR1742
Comal County, Texas
The Honorable Charles A. Stephens, II Presiding
_____________________________________________________
BRIEF FOR THE STATE
__________________________________________________________
Jennifer Tharp
Criminal District Attorney
By
Joshua D. Presley
SBN: 24088254
Appellate Prosecutor
150 N. Seguin Avenue, Suite #307
(830) 221-1300
Fax (830) 608-2008
New Braunfels, Texas 78130
E-mail: preslj@co.comal.tx.us
Attorney for the State
Oral Argument Respectfully Requested
Identity of Parties and Counsel
Attorney for Appellee, Brandom Garrett
AT TRIAL & ON APPEAL
Lance S. Turnbow
lanceturnbow@hotmail.com
401-B South LBJ Drive, Suite 8
San Marcos, TX 78666
Attorneys for the Appellant, The State of Texas
AT TRIAL
Ms. Abigail Whitaker & Mr. Lance Kennedy
Assistant District Attorneys
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
ON APPEAL
Joshua D. Presley
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: preslj@co.comal.tx.us
ii
Table of Contents
Index of Authorities ...................................................................................................v
I. Issues Presented ......................................................................................................1
II. Statement of Facts .................................................................................................2
III. Statement of the Case...........................................................................................7
Summary of the Argument.......................................................................................17
IV. Argument ...........................................................................................................18
A. Trooper Nolan Had Reasonable Suspicion Appellee Was
Speeding. .............................................................................................20
B. Trooper Nolan Had Reasonable Suspicion Appellee Was Driving
in the Left Lane Without Passing.. ....................................................26
1. Courts have found reasonable suspicion when an officer
does not observe a defendant until several miles after the sign,
even when there are several entrances in between.. ...............27
2. Texas Courts – including the Court of Criminal Appeals –
have found reasonable suspicion of a ‘left lane for passing
only violation’ even where the officer observed the violation
for less time than in the instant case, and regardless of
whether the defendant might ultimately have a defense to the
conduct......................................................................................30
3. Based on the totality of Trooper Nolan’s observations, he
had reasonable suspicion regardless of whether Appellee
might ultimately have a defense to the conduct, and the
possibility of ‘selective enforcement’ was likewise irrelevant..
...................................................................................................32
C. The Trial Court’s Findings Are Not Supported by the Record and
Warrant Reversal in and of Themselves............................................36
iii
D. The Trial Court – Even After Remand – Has Continued to
Refuse to Explicitly Answer Potentially Dispositive Issues the State
Raised in its May 22nd Supplemental Request for Essential Findings.
.............................................................................................................43
E. Alternatively, the Court Should Again Abate and Remand the
Case and Require the Trial Court to Make Explicit Essential
Findings on the State’s Requested Potentially Dispositive Issuse. ..49
V. Prayer ..................................................................................................................52
Certificate of Service ...............................................................................................53
Certificate of Compliance ........................................................................................53
iv
Index of Authorities
Cases
Abney v. State, 394 S.W.3d 542 (Tex. Crim.
App. 2013).................................................................................................. 6, 27, 37
Castro v. State, 03-12-00730-CR, 2015 WL
1214402 (Tex. App.—Austin Mar. 13,
2015, pet. ref’d) (not designated for
publication)............................................................................................................14
Cedano v. State, 24 S.W.3d 406 (Tex.
App.—Houston [1st Dist.] 2000, no pet.) .............................................................19
Dillard v. State, 550 S.W.2d 45 (Tex. Crim.
App. 1977).............................................................................................................20
Earvin v. State, 14-14-000702-CR, 2015
WL 4104701 (Tex. App.—Houston [14th
Dist.] July 7, 2015) (pet. ref’d Nov. 18,
2015) (not designated for publication). .................................................................30
Earvin v. State, 2015 WL 4104701 (Tex.
App.—Houston [14th Dist.] July 7, 2015),
petition for discretionary review refused
(Nov. 18, 2015.......................................................................................................27
Garcia v. State, 827 S.W.2d 937 (Tex. Crim.
App. 1992).............................................................................................................20
Gordon v. State, 801 S.W.2d 899 (Tex.
Crim. App. 1990) ........................................................................................... 18, 39
v
Hamal v. State, 390 S.W.3d 302 (Tex. Crim.
App. 2012).............................................................................................................19
Jaganathan v. State, 479 S.W.3d 244 (Tex.
Crim. App. 2015), reh’g denied (Feb. 10,
2016).............................................................................................................. passim
Jaroszewicz v. Texas Dep’t of Pub. Safety,
03-15-00340-CV, 2016 WL 4506163
(Tex. App.—Austin Aug. 26, 2016, no
pet.) (not designated for publication) ............................................................. 21, 25
Kirkland v. State, 400 S.W.3d 625 (Tex.
App.—Beaumont 2013, pet. ref’d) .......................................................................12
Leming v. State, 493 S.W.3d 552 (Tex.
Crim. App. 2016), reh’g denied (July 27,
2016)............................................................................................................... 12, 24
MacQuarrie v. State, 06-11-00077-CR,
2011 WL 4090047 (Tex. App.—
Texarkana Sept. 15, 2011, pet. ref’d) (not
designated for publication)....................................................................................13
Maki v. State, 05-07-00486-CR, 2008 WL
2688535 (Tex. App.—Dallas July 10,
2008, pet. ref’d) (not designated for
publication)............................................................................................................13
Marrero v. State, 03-14-00033-CR, 2014
WL 4400771 (Tex. App.—Austin Sept. 4,
2014, no pet.).........................................................................................................14
vi
Marrero v. State, 03-14-00033-CR, 2016
WL 240908 (Tex. App.—Austin Jan. 14,
2016, no pet.) (not designated for
publication)..................................................................................................... 12, 14
Masquelette v. State, 579 S.W.2d 478 (Tex.
Crim. App. 1979) ..................................................................................................21
Masquelette v. State, 579 S.W.2d 478 (Tex.
Crim. App. [Panel Op.] 1979) ...............................................................................13
Maysonet v. State, 91 S.W.3d 365 (Tex.
App.—Texarkana 2002, no pet.) ...........................................................................21
Maysonet v. State, 91 S.W.3d 365 (Tex.
App.—Texarkana 2002, no pet.) ...........................................................................13
McVickers v. State, 874 S.W.2d 662 (Tex.
Crim. App. 1993) ..................................................................................................20
Mills v. State, 99 S.W.3d 200 (Tex. App.—
Fort Worth 2002, no pet.)......................................................................................21
Mills v. State, 99 S.W.3d 200 (Tex. App.—
Fort Worth 2002, pet. ref’d) ..................................................................................13
Mouton v. State, 101 S.W.3d 686
(Tex.App.—Texarkana 2003) ...............................................................................26
Mouton v. State, 101 S.W.3d 686 (Tex.
App.—Texarkana 2003, no pet.) .............................................................................6
Navarette v. California, 134 S. Ct. 1683
(2014) ....................................................................................................................20
vii
Ochoa v. State, 994 S.W.2d 283 (Tex.
App.—El Paso 1999, no pet.). ....................................................................... 12, 24
Perales v. State, 117 S.W.3d 434 (Tex.
App.—Corpus Christi 2003) .................................................................................21
State v. Adams, 454 S.W.3d 48 (Tex.
App.—San Antonio 2014, no pet.) .......................................................................50
State v. Cadena, 08-09-00322-CR, 2010 WL
5541180 (Tex. App.—El Paso Dec. 29,
2010, no pet.) (not designated for
publication)............................................................................................................21
State v. Cullen, 195 S.W.3d 696 (Tex. Crim.
App. 2006)...............................................................................................................7
State v. Dubord, 03-15-00553-CR, 2016 WL
858929 (Tex. App.—Austin Mar. 2, 2016,
no pet.) (not designated for publication) ...............................................................50
State v. Elias, 08-08-00085-CR, 2012 WL
4392245 (Tex. App.—El Paso Sept. 26,
2012, pet. ref’d) (not designated for
publication)............................................................................................................47
State v. Elias, 339 S.W.3d 667 (Tex. Crim.
App. 2011).................................................................................................. 7, 43, 51
State v. Garrett, 03-17-00333-CR, 2017 WL
3044379 (Tex. App.—Austin July 14,
2017, no pet. h.) (not designated for
publication)..................................................................................................... 15, 46
viii
State v. Mazuca, 375 S.W.3d 294 (Tex.
Crim. App. 2012) ..................................................................................................18
State v. Munsey, 424 S.W.3d 767 (Tex.
App.—Fort Worth 2014).......................................................................................19
State v. Piedra, 13-13-00540-CR, 2015 WL
5576346 (Tex. App.—Corpus Christi June
25, 2015, no pet.) (not designated for
publication)............................................................................................................42
State v. Worrell, 03-16-00749-CR, 2017 WL
3222050 (Tex. App.—Austin July 26,
2017, pet. ref’d) (not designated for
publication)............................................................................................... 17, 25, 36
Tanner v. State, 228 S.W.3d 852 (Tex.
App.—Austin 2007, no pet.) .......................................................................... 12, 19
United States v. Castillo, 28 F. Supp. 3d 673
(S.D. Tex. 2014) ....................................................................................... 14, 22, 27
United States v. Castillo, 804 F.3d 361 (5th
Cir. 2015), cert. denied, 136 S. Ct. 1481
(2016) ............................................................................................................. 26, 29
Warren v. State, 05-08-01431-CR, 2009 WL
3467013 (Tex. App.—Dallas Oct. 29,
2009, no pet.) (not designated for
publication)..................................................................................................... 23, 39
Whren v. US, 517 U.S. 806 (1996) ..........................................................................20
ix
Statutes & Rules
Tex. R. App. P. 44.4...................................................................................................7
Tex. R. Civ. P. 298 ...................................................................................................15
Tex. Transp. Code Ann. § 544.011 ......................................................................6, 34
x
I. Issues Presented
1. Where the totality of the facts and circumstances – including Trooper
Nolan’s estimation that Appellee was speeding in light of Nolan’s extensive
training and experience and Nolan’s confirmation of Appellee’s speeding on
Nolan’s extensively and properly used and tested radar gun – demonstrated
probable cause to believe Appellee was violating a Traffic Law, did Nolan
have reasonable suspicion to conduct a traffic stop?
2. Where the totality of the facts and circumstances – including Trooper
Nolan’s personal observation of and video evidence confirming Appellee’s
driving in the left lane without passing for a longer period of time than that
found sufficient in other Texas Courts – warranted reasonable suspicion that
Appellee was committing the offense Driving in the Left Lane Without
Passing, did the Trial Court err in granting the motion to suppress?
3. Where the Trial Court’s findings indicate it apparently found Appellee was
driving 75 miles in a 70-mile-per-hour zone, but the Trial Court incorrectly
applied the law to this fact to conclude Appellee had not actually committed
the offense of speeding, did the Trial Court err in finding no reasonable
suspicion of a speeding violation and suppressing the evidence?
4. Where each of the Trial Court’s detailed and explicit findings and
conclusions are internally inconsistent and clearly erroneous based on
established law, should the Court rely on the Trial Court’s other general
findings and conclusions which do not cite to and have no basis in the
record?
5. Where the State timely requests findings and conclusions under Cullen,
details the potentially dispositive issues for the Trial Court, reminds the Trial
Court of the impending appellate deadline, the Trial Court apparently refuses
to file any findings, the case is abated and remanded for the Trial Court to
make its essential findings, and the Trial Court acknowledges the State’s
detailed request but nevertheless continues to refuse making explicit findings
on the issues, should this Court recognize the Trial Court implicitly found
said issues favored the State – as the court of appeals in Elias ultimately did?
6. Alternatively, where the State timely requested findings and detailed the
potentially dispositive issues, should the Court abate and remand under
Cullen and Elias where the Trial Court refused to make essential findings
necessary for this Court to review its application of the law to the facts?
1
II. Statement of Facts1
Trooper Jason Nolan is a certified peace officer and special agent with the
Texas Department of Public Safety (hereinafter “DPS”) (II R.R. at 6). At the time
of the hearing, Nolan had served 13-and-a-half years with DPS (id.). Nolan had an
associate’s degree in criminal justice, and he was only 11 hours shy of earning his
bachelor’s degree when he was accepted by DPS (id.).
Speeding
Nolan had made at least 200 stops for speeding as a trooper with DPS (id. at
30). Based on his training, Nolan was able to “approximate [an individual’s] speed
.... within 5-miles per hour” (id. at 15). Nolan would verify his approximations by
using his radar unit (id.; see also id. at 34 (Nolan would observe speeding based on
his training and confirm it with radar; “radar is really a secondary method to
confirm the speed”). Nolan had specialized training and instruction on the use of
his radar unit, including his initial field certification training upon joining DPS and
his recertification every two years since then (id. at 7). In his over 13 years with
DPS, Nolan had generally operated his radar unit as part of his “daily duty ....
[t]raffic and accident investigation were an every day thing at DPS” (id.).
1
The State includes its Statement of the Case after its Statement of Facts because the procedural
history related to the Trial Court’s findings flows more naturally after the facts elicited at the
hearing.
2
Nolan explained that his radar worked off of the doppler principal, emitting
a signal which is reflected back to the radar’s antenna to determine a vehicle’s
speed (see id. at 7). The radar unit was tested in at least two different ways (id. at
7-8). First, Nolan would perform an internal circuit test both before and after his
shifts (id.; see also id. at 32). Nolan would hold down a test button and the radar
unit would run through an internal calibration test (id. at 27). Second, Nolan would
perform a tuning fork test to calibrate the radar “the way [he] was taught. The way
the manufacturer requires it calibrated” using two different forks the manufacturer
provided (id. at 28-29, 8). The two tuning forks tested the radar unit at both 25 and
40 miles per hour to get a better reading (id. at 28-29, 33-34). Moreover, in the
event the radar ever malfunctioned, the unit’s display would read “fail” (id. at 29).
Given Nolan’s extensive training, experience and the rigorous and varied multiple
daily testing of his radar unit, Nolan was confident that his over-200 speeding
stops were “100-percent accurate as far as speed” and that he had not made any
mistakes with his radar gun (id. at 30).
Nolan was on duty on the side of Interstate Highway 35 – facing the
northbound lane – on May 29, 2015 (id. at 8). Nolan had verified that his radar unit
was working “properly” and “accurately” that day at the beginning of his shift,
using both the internal circuit test and the tuning forks (id.; see also id. at 16). It
was still daytime at around 7:31 p.m. when Nolan observed Appellee’s white Ford
F-250 pickup come over the hill (id. at 8, 16; see also State’s Ex. 5 at 0:50 (in the
3
far left lane)). Based on his training and experience, Nolan approximated “that
[Appellee] appeared to be driving over the posted speed limit[]. Generally in that
location most people are” (II R.R. at 15 (also noting many speeding violations
occur at that location)). After noticing Appellee was driving in excess of the 70-
mile-per-hour speed limit, Nolan used his radar gun to verify that Appellee was
driving “75 in a 70” (id. at 15-16). Nolan also observed that Appellee was
committing another traffic offense, in that Appellee was driving in the left lane
without passing.
Driving in the Left Lane Without Passing
Nolan was familiar with that section of IH35. Prior to May 29, 2015, Nolan
had a “left lane for passing only” sign installed on that northbound section of 35
“because of the issues we were having” (id. at 23; see also III R.R. at 4 (front view
of sign with entry ramp merging into right lane), 5 (back of sign, facing
southbound)). Even traffic on the final entry ramp before Nolan’s parked position
should have seen the sign (II R.R. at 13, 14, 24).
In addition to speeding, when Nolan first observed Appellee come over the
hill, Nolan “observed [Appellee’s F-250] to be in the left lane and it was not
passing” (id. at 15; see also State’s Ex. 5 at 0:50). Appellee’s truck was around
eight to ten car lengths ahead of the truck it in the middle lane (II R.R. at 19; see
also State’s Ex. 5 at 0:50). On the video, Appellee is not passing or attempting to
4
pass another vehicle for some time (see State’s Ex. 5 at 0:50). At around 1:23 into
the video, Appellee is parallel to a vehicle in the far right lane, and at around 1:40
a vehicle moves into the middle lane next to Appellee (see id.). Nolan observed
Appellee for a “[g]ood amount of time” (II R.R. at 17), noting there was plenty of
time and distance for Appellee to make a safe transition back into the middle lane
(id. at 19). After observing two traffic violations – speeding and driving in the left
lane without passing – Nolan initiated a traffic stop (id. at 17).
Appellee’s Motion to Suppress Hearing
At the outset of the hearing on the motion to suppress, Appellee
acknowledged that “we’re just arguing about the traffic stop” (II R.R. at 5). Only
one witness –Trooper Nolan –testified at the hearing on Appellee’s motion to
suppress (see generally II R.R.). The State also introduced maps, photographs of
the area, and video from Trooper Nolan’s dash camera (see generally III R.R.,
State’s Ex. 5). Appellee introduced no evidence, cited outdated caselaw, and his
cross-examination focused on arguments such as “[Trooper Nolan,] you can’t say
with exact certainty – you can’t say there’s no way [the radar gun] malfunctioned
on that day” (II R.R. at 29 (emphasis added)), that it was “possible ... your radar is
5
measuring” another vehicle (id. at 31 (emphasis added)),2 and that “[w]e’re talking
just 5 miles over [the speed limit], agreed?” (id. at 35 (emphasis added)).
In closing, the State cited Nolan’s two observed traffic violations: speeding
and driving in the left lane without passing, arguing he had at least reasonable
suspicion – and likely probable cause – to make the traffic stops (id. at 35-36
(citing, e.g., Tex. Transp. Code Ann. § 544.011, 544.001; Mouton v. State, 101
S.W.3d 686, 690 (Tex. App.—Texarkana 2003, no pet.); Abney v. State, 394
S.W.3d 542, 549 (Tex. Crim. App. 2013) (citing Mouton with approval); id. at 39
(pointing out Nolan’s testimony, evidence and the video showed Appellee was not
passing for over a mile)).
Regarding the driving-in-the-left-lane offense, Appellee claimed notice of
the sign was not an issue, and instead claimed Appellee was passing and giving
“plenty of room” to the car behind him (II R.R. at 38). Appellee argued “[h]e
wasn’t somebody hanging out in the left lane, mile after mile, after mile blocking
the road” (id.). As for Appellee’s speeding, Appellee argued that under Kelly and
“Ochoa v. State 994 S.W.2d,” Trooper Nolan had to “explain the actual
calculation” his radar gun used to determine speed (id. at 38-39). Appellee also
minimized his 5-miles-an-hour excess of the speed limit (see id. at 39; see also I
C.R. at 65 (Appellee’s proposed finding for the Trial Court stated that “[t]he
2
As noted infra, to meet its burden at the suppression hearing the State is not required to
establish an offense was committed beyond a reasonable doubt, but only whether the officer had
a reasonable suspicion an offense had been committed. In any event, Appellee’s cross-
examination which would appear to require “exact certainty” surpasses even the beyond-a-
reasonable-doubt standard.
6
defendant’s speed, 75 in a 70, was reasonable and prudent for the driving
conditions at the time of the stop”); id. at 52 (State points out Appellee’s apparent
admission and incorrect standard); id. at 68 (Appellee argues his proposed finding
was not an admission)). The Trial Court granted the motion to suppress without
explaining its reasoning (id. at 40).
III. Statement of the Case
In the circumstances of this case, the Trial Court is required to provide
findings and conclusions adequate to allow this Court review its decision. As the
Court of Criminal Appeals in State v. Cullen held:
...upon the request of the losing party on a motion to suppress
evidence, the trial court shall state its essential findings. By “essential
findings,” we mean that the trial court must make 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.
State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006); see also State v.
Elias, 339 S.W.3d 667, 676-77 (Tex. Crim. App. 2011) (the omission of findings
and conclusions with respect to a potentially dispositive fact issue constitutes a
“failure ... to act” for purposes of Tex. R. App. P. 44.4).
The State has attempted to present its case and the underlying potentially
dispositive factual matters to the Court.3 On May 1, 2017, the Trial Court signed
3
The State’s numerous and respectful filings, infra, were undertaken first in the hopes that the
Trial Court would reconsider and deny the Motion to Suppress – potentially obviating the need
7
the order granting the Defendant’s Motion to Suppress after the hearing (I C.R. at
19). The State timely filed its original Request for Findings of Fact and
Conclusions of Law on May 9, 2017 (I Supp. C.R. at 4). The State timely appealed
on May 19, 2017 (I C.R. at 21). The State then filed a Supplemental Request with
the Trial Court detailing essential and potentially dispositive issues and suggesting
proposed essential findings on May 22nd (I C.R. at 31).4 Citing to the applicable
portions of the record and case law, the State asked the Trial Court to make
specific essential findings and conclusions as to:
Findings of Fact5
1. Whether Trooper Nolan’s Testimony at the suppression hearing was
credible and whether the facts were as Trooper Nolan believed them to
be, and if and to the degree the Court found it was not, explicit findings
as to each and every assertion the Court found not credible.
2. Whether most people speed at the location on Interstate Highway 35
where Trooper Nolan first observed the Defendant (II R.R. at 15).
3. Whether Trooper Nolan had over 10 years of experience as a State
Trooper and had conducted at minimum over 200 speeding stops (id. at
6; id. at 30).
for interlocutory appeal – and alternatively, to ensure the State could present the essential facts
on potentially dispositive issues to this Court to obtain meaningful appellate review.
Notwithstanding its persistent filings and its necessary arguments seeking reversal, the State has
great respect for the Honorable Judge of County Court at Law #2.
4
In its Supplemental Request, the State cited State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim.
App. 2006), State v. Elias, 339 S.W.3d 667, 676-77 (Tex. Crim. App. 2011) and Tex. R. App. P.
44.4. The State also filed a Motion for Reconsideration on May 26, 2017, citing additional case
law supporting the same theories urged at the hearing (I C.R. at 49).
5
The following – with a few minor truncations and an added footnote (n.5) – was copy/pasted
from the State’s Supplemental Request (I C.R. at 31) for the Court’s convenience.
8
4. Whether State’s Exhibits 1-4 were fair and accurate depictions of the
scene, and whether Trooper Nolan’s approximations of the various
distances involved in this case were accurate (see id. at 9-14).
Furthermore, whether [testimony and evidence related to specific
locations on the maps – including the final entrance ramp and the sign –
and distances involved were accurate] ....
5. Whether the area at issue in this case - a few miles north and south of
Trooper Nolan’s initial stationary location on IH35 - is a relatively
sparsely populated stretch (with relatively fewer businesses and
residences) in between the more heavily populated cities of New
Braunfels and San Marcos (see, e.g., State’s Ex. 5 (Dash-Cam Video)).
6. Whether – based on his training and experience – Trooper Nolan could
observe and approximate an individual’s speed within five miles per hour
(II R.R. at 15 (State: “Given that, plus your training, you would be able to
... approximate the defendant’s speed? Nolan: “Correct .... When we’re
observing that speed we can generally tell within 5-miles per hour.”)).
7. Whether Trooper Nolan first observed the Defendant’s vehicle and
estimated that the Defendant was driving over the posted speed limit of
70 miles per hour (id. (Nolan: “I noticed that [the Defendant’s vehicle]
appeared to be driving over the posted speed [limit]”)).
8. Whether Trooper Nolan then confirmed his personal estimate on his radar
unit (id. at 34). Whether Nolan’s radar unit displayed that the Defendant
was driving at a speed of 75 miles per hour in a 70 mile-per-hour zone
(id. at 15-16).
9. Whether Trooper Nolan had specialized training as a peace officer on the
operation of his radar unit (id. at 6-7).
10. Whether Trooper Nolan had field training and certification on the use of
radar every two years, and whether he was certified on its use on May 29,
2015 (id. at 7).
11. Whether Trooper Nolan operated his radar unit daily as part of his
regular duties with the Texas Department of Public Safety (DPS) (id. at
7).
9
12.Whether Trooper Nolan had performed an internal circuit test of his radar
unit at the beginning of his shift on that date using two separate tuning
forks, in accordance with DPS policy (id. at 16).6
13. Whether Trooper Nolan used the two separate tuning forks provided by
the manufacturer to calibrate his radar at different speeds - 25 and 40
miles per hour - in order to get a more accurate reading (id. at 33-34).
14. Whether on May 29, 2015 - the date on which Trooper Nolan observed
the Defendant’s vehicle - Trooper Nolan found from his tests at the
beginning of his shift that his radar unit was working properly (id. at 8
(State: “On the day involving this defendant ... did you find the radar unit
to be working properly?” Nolan: “Yes”), 16 (Nolan says his radar unit
“was working” and describes the circuit tests at the beginning of the
shift).
15. Whether Trooper Nolan was trained and qualified to operate his radar
device (see, e.g., supra (Findings on 3, 9-14)).
16. Whether Trooper Nolan understood the technique to apply and use his
radar (see, e.g., supra (Findings on 3, 9-14)) .
17. Whether Trooper Nolan properly applied and used his radar device (see,
e.g., supra (Findings on 3, 9-14); II R.R. at 15-16) .
18. Whether Trooper Nolan’s radar read ‘fail’ when Trooper Nolan observed
the Defendant's vehicle, indicating it was not working properly (id. at 29;
see also supra (Findings on 12-14)).
19. Whether Trooper Nolan believed his accuracy in correctly giving
speeding tickets based on his radar gun was 100% (II R.R. at 30).
20. Whether on May 29, 2015, the ‘left lane for passing only’ sign was
posted after the last entrance ramp prior to where Nolan first observed the
Defendant, and whether it was visible on the day in question (II R.R. at
12; see also infra). Whether Nolan was the individual who requested that
the Texas Department of Transportation put the sign up at that location
prior to that date (II R.R. at 23 (Defense: “Do you know if that left lane
for passing only sign was on the road then?” Nolan: “Yes, I’m the one
6
It would appear from further review of the reporter’s record that Trooper Nolan performed both
an internal circuit test and a separate tuning fork test (II R.R. at 7-8, 27, 28-29, 32-34).
10
that had it put up .... I contacted the TxDot superintendent to put [the
sign] up because of the issues we were having”)).
21. Whether an individual entering the final northbound ramp before
Nolan’s stationary position - who was observing traffic signs - would
have seen the ‘left lane for passing only’ sign (see State’s Ex. 4; II R.R.
at 14, 24).
22. Whether the State’s Exhibit 5 - a copy of Trooper Nolan’s dash-cam
video - was admitted into evidence at the hearing, and whether it was a
fair and accurate depiction of the events recorded (State’s Ex. 5).
23. Whether the Defendant was already in the far left lane when Nolan
observed him come over the hill northbound on IH35 (State’s Ex. 5 at
:45-50). Whether it was very unlikely the Defendant had entered the
highway from the most recent on-ramp, as the Defendant would have had
to immediately travel across all three lanes of traffic to reach the lane
where Nolan first observed him (see State’s Ex. 5; State’s Ex. 1-4; II
R.R. at 9-14).
24. Whether the likelihood was over 50% – or likely much higher – that cars
in general travelling on that section of IH35 had passed the ‘left lane for
passing only’ sign located immediately after where the final entrance
ramp joined the highway prior to Trooper Nolan’s position. See, e.g.,
supra (Findings on 4, 5, 20 & 21).
25. How far Defendant’s car was ahead of the car behind him when Trooper
Nolan first observed Defendant’s car at the top of the hill approaching
Nolan’s stationary position (see II R.R. at 19 (around eight to ten car
lengths or 50 meters); see also State’s Ex. 5 at 0:50). Whether a ‘car
length’ is approximately 15 feet.
26. Whether from around the 0:50 on State’s Ex. 5 to 1:23, the Defendant is
not passing or attempting to pass another vehicle (State’s Ex. 5). Whether
at 1:23, the Defendant is parallel to a vehicle in the far right lane (id.).
Whether at 1:43, the Defendant is passing a vehicle which moved into the
middle lane (id.).
....
11
Conclusions of Law
1. Whether “[f]or 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 offense is not a requisite.’” Leming v. State, 493
S.W.3d 552, 561 (Tex. Crim. App. 2016), reh’g denied (July 27, 2016).
2. Whether it is or “is not necessary to show that an individual actually
violated a traffic regulation; “[i]t is sufficient to show the officer
reasonably believed that a violation was in progress.” Marrero v. State,
03-14-00033-CR, 2016 WL 240908, at *3 (Tex. App.—Austin Jan. 14,
2016, no pet.) (not designated for publication).
3. Whether “[a]n officer may not act solely on a hunch, but his
determination of “the likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard.” Tanner v. State,
228 S.W.3d 852, 856 (Tex. App.—Austin 2007, no pet.)....
4. Whether a reasonable suspicion determination need not rule out the
possibility of innocent conduct. Leming v. State, 493 S.W.3d 552, 563
(Tex. Crim. App. 2016), reh’g denied (July 27, 2016). “The possibility of
an innocent explanation does not deprive the [detaining] officer of the
capacity to entertain reasonable suspicion of criminal conduct. Indeed,
the principal function of his investigation is to resolve that very
ambiguity and establish whether the activity is in fact legal or illegal.” Id.
at 564.
5. Whether “[i]n determining whether reasonable suspicion was present at
the time of the investigatory stop, a trial court is required to disregard
‘the actual subjective intent or motive of the detaining officer[.]’”
Kirkland v. State, 400 S.W.3d 625, 629 (Tex. App.—Beaumont 2013,
pet. ref’d). “Instead, the trial court looks ‘to whether there was an
objective justification for the detention.’” Id.
6. The Defendant cited Ochoa v. State at the hearing (II R.R. at 38). See 994
S.W.2d 283, 284 (Tex. App.—El Paso 1999, no pet.). Whether, as
Perales v. State observed regarding Ochoa, “[m]ore recently, however,
the Texarkana Court of Appeals has held that even under Kelly, the
underlying scientific principles of radar are indisputable and valid as a
matter of law.” 117 S.W.3d 434, 442 (Tex. App.—Corpus Christi 2003,
pet. ref’d) (citing Maysonet v. State, 91 S.W.3d 365, 371 (Tex. App.—
12
Texarkana 2002, no pet.), and Masquelette v. State, 579 S.W.2d 478, 481
(Tex. Crim. App. [Panel Op.] 1979)); see also Mills v. State, 99 S.W.3d
200, 202 (Tex. App.—Fort Worth 2002, pet. ref’d) (rejecting the
appellant's argument regarding the scientific theory of radar based on
Ochoa, the Court held that “[w]e agree with the principles enunciated in
Maysonet and hold that the underlying scientific principles of radar are
indisputable and valid as a matter of law”); MacQuarrie v. State, 06-11-
00077-CR, 2011 WL 4090047, at *2 (Tex. App.—Texarkana Sept. 15,
2011, pet. ref’d) (not designated for publication) (again recognizing the
underlying scientific principles of radar - the first Kelly factor - is
indisputable and valid as a matter of law); Maki v. State, 05-07-00486-
CR, 2008 WL 2688535, at *2 (Tex. App.—Dallas July 10, 2008, pet.
ref’d) (not designated for publication) (same).
7. Whether – despite the Defendant’s reliance on Ochoa – in accordance
with the forgoing authorities, this Court concludes that the underlying
scientific principles of radar are indisputable and valid as a matter of law.
8. Whether Trooper Nolan reasonably believed that the “left lane for
passing only” prohibition did not allow for travelling in the far left lane
to pass a vehicle in the far right lane.
9. Whether Trooper Nolan was mistaken as to the scope of the prohibition.
Whether a driver may use the far left lane for passing a vehicle in the far
right lane, even when the middle lane is open.
10. Whether – and despite the fact that the Defendant cross-examined
Trooper Nolan about the purpose of the law (II R.R. at 21) – as the Court
of Criminal Appeals has recently observed, it is inappropriate to
“consider[] the purpose of the law against driving in the left lane without
passing” in the reasonable suspicion determination:
[The trooper] was not required to consider the purpose of the law
in deciding whether he believed appellant had violated it. Just as
running a stop sign is illegal even if it can be done safely, driving
in the left lane in violation of a posted sign is illegal even if it
can be done safely
Jaganathan v. State, 479 S.W.3d 244, 248 (Tex. Crim. App. 2015), reh’g
denied (Feb. 10, 2016).
13
11. Whether – and despite the fact the Defendant cross-examined Trooper
Nolan about the fact that he did not stop another vehicle for driving in
the left lane without passing (II R.R. at 32-33) – as courts have observed,
“[t]o the extent there are concerns that the “Passing Only” sign is being
selectively enforced, the Supreme Court has held that those concerns do
not enter this Fourth Amendment calculus.” United States v. Castillo, 28
F. Supp. 3d 673, 677 (S.D. Tex. 2014) (emphasis added), aff’d, 804 F.3d
361 (5th Cir. 2015).
(I C.R. at 31 (also suggesting the State’s proposed findings)). The State later filed a
Notice of Past Due Findings to ensure compliance with Tex. R. Civ. P. 297 on
June 8, 2017, requesting that the Trial Court enter its findings “as soon as possible,
so that the State may review and request additional findings as necessary under
Tex. R. Civ. P. 298” (I Supp. C.R. at 6, 8).7 No findings and conclusions were filed
before the records were submitted to this Court, however.8
After both records were on file with this Court, this Court abated and
remanded for the Trial Court to state its “‘essential’ findings of fact and
conclusions of law” on the motion to suppress. See State v. Garrett, 03-17-00333-
7
Although technically not required in a criminal case (see Marrero v. State, 03-14-00033-CR,
2014 WL 4400771, at *1 (Tex. App.—Austin Sept. 4, 2014, no pet.) (not designated for
publication), the State filed said notice out of an abundance of caution, to ensure the Trial Court
was aware of the impending appellate deadlines, and to allow the State to request additional
findings as necessary. The notice also requested a ruling on the attached State’s Motion for
Reconsideration, which merely included additional case law supporting the theories urged at the
hearing (see Black v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012) (noting the trial court
has continuing jurisdiction over an interlocutory suppression ruling and may reconsider it
throughout the course of trial)) - and included a Certificate of Presentment signed by the Trial
Court’s Coordinator to ensure it was brought to the Trial Court’s attention. See also cf. Castro v.
State, 03-12-00730-CR, 2015 WL 1214402, at *4 (Tex. App.—Austin Mar. 13, 2015, pet. ref’d)
(not designated for publication) (noting presentation of a motion for new trial to a court
coordinator can satisfy the presentation requirement for such motions); Tex. R. App. P. 33.1(a).
8
The State also filed a motion to extend time to file the clerk’s record in this Court on June 7th to
give the Trial Court additional time to enter its findings and to allow the State to request
additional findings; however, both the clerk’s and reporter’s record were on file with this Court
by June 12th.
14
CR, 2017 WL 3044379, at *1 (Tex. App.—Austin July 14, 2017, no pet. h.) (not
designated for publication). The Trial Court was ordered to submit such findings in
a supplemental clerk’s record by August 14, 2017. Id.
The State then filed a Notice of the Third Court’s Impending Deadline to
File Findings of Fact & Conclusions of Law with the Trial Court on August 9,
2017, in which it mentioned that “as the State indicated in its Notice of Past Due
Findings ... the State may need additional time once the [Trial] Court has filed its
findings and conclusions to request any necessary additional findings and
conclusions before the record is sent to the Court of Appeals. See Tex. R. Civ. P.
298” (II Supp. C.R. at 10-11). The Trial Court received an extension from this
Court until August 25th to submit its findings and subsequently filed its findings
with the District Clerk on August 22nd (II Supp. C.R. at 7-9).
The State immediately set to work compiling the State’s Objections and
Request for Additional Findings pursuant to Tex. R. Civ. P. 298. Because the
attorney for the State was going to be out of town from August 23rd through the
28th, he passed his work over to a colleague and asked him to file it on August 24 th,
since the clerk’s supplemental record was due on August 25th. Although he did file
the State’s Objection and Request for Additional Findings9 on August 24th, the
Clerk submitted the supplemental record and this Court reinstated the appeal
9
See III Supp. C.R. at 4 (the requested findings largely correspond to the State’s May 22nd
request for findings, with the exception that Finding #2 (“Whether Trooper Nolan’s testimony
was not credible only to the extent that it conflicted with the video”) was added in direct
response to the Trial Court’s apparent findings, and subsequent findings have a corresponding
higher number (e.g. #2 is now #3, etc.)).
15
immediately on that same date, only two days after the Trial Court filed its
findings.10 The State’s Objection and Request for Additional Findings largely
mirrored its earlier Supplemental Request for findings which had detailed the
precise and potentially dispositive issues the State needed findings on to present its
case to this Court (III Supp. C.R. at 4). The State’s earlier Supplemental Request
was acknowledged on the first page of the Trial Court’s findings, though most of
the essential and potentially dispositive issues were not explicitly addressed in the
Trial Court’s findings (II Supp. C.R. at 7).
Finally, the State filed a second Motion to Abate & Remand, or
Alternatively, to not Deem or Presume any Findings or Conclusions in this Court
on August 29, 2017 – within the 10-day period of Texas Rule of Civil Procedure
298 to request additional findings. This Court granted the alternative relief of
continuing the appeal to briefing on September 18, 2017. The State now submits its
Brief, asking that the Court either reverse the Trial Court’s order suppressing
evidence, or alternatively, abate and remand once again and require the Trial Court
to enter its explicit findings on the potentially dispositive issues pointed out by the
State.
10
The attorney for the State asked that the State’s Objection and Request for Additional Findings
be filed before he later discovered the Clerk apparently planned to submit and actually submitted
the supplemental record early – and this Court reinstated the appeal – on August 24th.
16
Summary of the Argument
The Trial Court erred in granting the motion to suppress because the State
presented credible evidence of reasonable suspicion to believe Appellee had
committed two separate traffic violations. Moreover, Appellee’s arguments at the
hearing were legally erroneous, and the Trial Courts Explicit findings indicate it
adopted Appellee’s erroneous legal conclusions. The Trial Court’s explicit findings
are internally inconsistent, clearly erroneous, and warrant reversal in themselves.
Moreover, because the Trial Court has had multiple opportunities to enter its
explicit essential findings on requested issues, its continued refusal to do so should
be interpreted as impliedly finding the facts were favorable to the State, and the
Court should reverse the order suppressing the evidence. Alternatively, this Court
should again abate and remand for the necessary essential findings.
Standard of Review on a Motion to Suppress
Appellate courts will review a trial court’s ruling on a motion to suppress for
an abuse of discretion and will “overturn the ruling only if it is arbitrary,
unreasonable, or ‘outside the zone of reasonable disagreement.’” State v. Worrell,
03-16-00749-CR, 2017 WL 3222050, at *3 (Tex. App.—Austin July 26, 2017, pet.
ref’d) (not designated for publication) (citing State v. Story, 445 S.W.3d 729, 732
(Tex. Crim. App. 2014). “When a trial court makes explicit fact findings,
[reviewing courts will] determine whether the evidence viewed in the light most
favorable to the trial court's ruling supports the fact findings. Id. (citing Johnson v.
17
State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). Courts will give “almost
complete deference to the trial court’s determination of historical facts, but [will]
review court’s application of the law to those facts de novo.” Id. (citing Story, 445
S.W.3d at 732). Reviewing courts are “not bound by the trial court’s findings and
conclusions that are not supported by the record.” Id. (citing State v. Whittington,
401 S.W.3d 263, 271 (Tex. App.—San Antonio 2013, no pet.); also citing State v.
Mazuca, 375 S.W.3d 294, 308-09 (Tex. Crim. App. 2012) (“rejecting trial court’s
conclusion as to ‘flagrancy of the police action’ that was not supported by
record”)).
IV. Argument11
Reasonable Suspicion
The Court of Criminal Appeals has held that “the Texas Constitution does
not impose any greater restrictions on police conduct than those imposed by the
Fourth Amendment to the United States Constitution.” Gordon v. State, 801
S.W.2d 899, 912 (Tex. Crim. App. 1990) (adopting the objective standard in
evaluating police conduct, and analyzing appellant’s constitutional claims “within
a normal constitutional framework”); see also Cedano v. State, 24 S.W.3d 406, 410
n.1 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (noting “state standards for
11
Because the Trial Court’s explicit findings and conclusions indicate it appears to have adopted
many of Appellee’s erroneous legal arguments, the State will first go through its legal standards
and precedents before reaching the Trial Court’s explicit findings, infra; the State believes
ordering its brief in this manner helps further highlight the erroneous nature of the Trial Court’s
explicit findings and conclusions.
18
review of investigative stops are the same as federal standards”). In order to
conduct a traffic stop, an officer must have reasonable suspicion. Hamal v. State,
390 S.W.3d 302 (Tex. Crim. App. 2012). “Reasonable suspicion exists when an
officer is aware of specific articulable facts that, when combined with rational
inferences from those facts, would lead him to reasonably suspect that a particular
person has engaged or is engaging in criminal activity.” Id. at 306. Further, only
“some minimal level of objective justification” is required to rise to the level of
reasonable suspicion. Id.
The State does not have to establish with absolute certainty that a crime has
occurred. State v. Munsey, 424 S.W.3d 767, 771 (Tex. App.—Fort Worth 2014).
As stated in Jaganathan v. State, “[t]he question in this case is not whether
appellant was guilty of the traffic offense but whether the trooper had a reasonable
suspicion that [h]e was.” 479 S.W.3d 244, 247 (Tex. Crim. App. 2015), reh’g
denied (Feb. 10, 2016).
An officer’s determination need not rise to the level required for probable
cause, and it falls considerably short of satisfying a preponderance of the evidence
standard. Tanner v. State, 228 S.W.3d 852, 856 (Tex. App.—Austin 2007, no pet.)
(citing U.S. v. Arvizu, 534 U.S. 266, 274 (2002)). As one Court has observed,
“Justice Scalia, who found reasonable suspicion lacking in Navarrette, nonetheless
implied that a probability of ‘1 in 10’ or even ‘1 in 20’ would satisfy the standard.”
19
Castillo v. State, 28 F. Supp. 3d 673, 675 (S.D. Tex. 2014)12, aff’d, 804 F.3d 361
(5th Cir. 2015).
A. Trooper Nolan Had Reasonable Suspicion Appellee Was Speeding.
Texas Transportation Code Section 545.351 states that “an operator may not
drive at a speed greater than is reasonable and prudent under the circumstances
then existing.” Section 545.352 dictates that “a speed in excess of the limits
established by Subsection (b) or under another provision of this subchapter is
prima facie evidence that the speed is not reasonable and prudent and that the
speed is unlawful.” Subsection (b) designates the lawful speed for a numbered
highway to be 70 miles per hour. Further, the posted speed limit on Interstate 35 (a
numbered highway) at the relevant location is 70 miles per hour (I C.R. at 34
(State’s Request for a Finding on #7); II R.R. at 15)).
It has long been established that a peace officer may stop and detain a
motorist when he has a reasonable basis for suspecting that the person has
committed a traffic offense. See Whren v. US, 517 U.S. 806 (1996); Garcia v.
State, 827 S.W.2d 937 (Tex. Crim. App. 1992); McVickers v. State, 874 S.W.2d
662 (Tex. Crim. App. 1993). Further, an officer does not have to identify the exact
speed a vehicle is going in order to detain it for speeding. Dillard v. State, 550
S.W.2d 45 (Tex. Crim. App. 1977). An officer’s visual perception of ‘speeding,’
12
Citing Navarette v. California, 134 S. Ct. 1683 (2014); id. at 1695 (Scalia, J., Ginsburg,
Sotomayor and Kagan, JJ., dissenting).
20
alone, can provide sufficient reasonable suspicion or probable cause to justify a
traffic stop. See, e.g., Jaroszewicz v. Texas Dep’t of Pub. Safety, 03-15-00340-CV,
2016 WL 4506163, at *4 (Tex. App.—Austin Aug. 26, 2016, no pet.) (not
designated for publication); State v. Cadena, 08-09-00322-CR, 2010 WL 5541180,
at *3 (Tex. App.—El Paso Dec. 29, 2010, no pet.) (not designated for publication)
(evidence that officer observed speeding authorized reasonable suspicion traffic
stop of defendant).
Additionally, the underlying scientific principles of radar have repeatedly
been found by Texas courts to be valid as a matter of law, rejecting the holding in
Ochoa that an officer must be able to testify to the inner workings of the radar unit
in order to satisfy the first prong of the Kelly test. Masquelette v. State, 579 S.W.2d
478 (Tex. Crim. App. 1979); Perales v. State, 117 S.W.3d 434 (Tex. App.—
Corpus Christi 2003); Maysonet v. State, 91 S.W.3d 365 (Tex. App.—Texarkana
2002, no pet.); Mills v. State, 99 S.W.3d 200 (Tex. App.—Fort Worth 2002, no
pet.). The State must only prove the second and third prongs of Kelly when
establishing the reliability of radar reading: that the officer knew how to operate
the radar and that it was operated correctly on the occasion in question. Perales v.
State, 117 S.W.3d 434 (Tex. App.—Corpus Christi 2003).
Trooper Nolan testified at the hearing on the defendant’s Motion to Suppress
Evidence that he was trained in the operation of his radar unit,13 that he calibrated
13
See I C.R. at 34 (e.g., State’s Request for a Finding on #9-10); see also II R.R. at 6-7.
21
it at the beginning of his shift,14 and that it was working properly on the day in
question.15 Nolan further detailed that he operated his radar gun in conformity with
the manufacturer’s instructions and that the reading he received was confirmed by
his own observations.16 Trooper Nolan testified that he had specific training, over
ten years’ experience in observing vehicles in motion and that he determined the
defendant’s vehicle to be speeding prior to activating his radar unit.17 He testified
that the defendant was travelling at 75 miles per hour on a section of Interstate 35
where the posted speed limit was 70 miles per hour.18
Indeed, even Appellee himself appeared to admit he was driving at 75 miles
per hour in a 70 mile-per-hour zone; in his proposed finding of fact #5, the
Appellee states: “The [Appellee’s] speed, 75 in a 70, was reasonable and prudent
for the driving conditions at the time of the stop” (I C.R. at 65). In his proposed
conclusion of law #3, the Appellee stated “The [Appellee] was driving at a
‘reasonable and prudent’ speed as required by Texas Transportation Code section
545.351” (id. at 66).19 However, Appellee was not being tried for speeding, and the
State was not required to prove beyond a reasonable doubt that Appellee was
14
See I C.R. at 35 (e.g., State’s Request for a Finding on #12-14); see also II R.R. at 8, 16, 33-
34.
15
See I C.R. at 35 (e.g., State’s Request for a Finding on #12-18); see also II R.R. at 8, 15-16,
29-30, 33-34.
16
See I C.R. at 35 (e.g., State’s Request for a Finding on #7, 13, 15-18, 19); see also II R.R. at 15
(“I noticed that [the Defendant’s vehicle] appeared to be driving over the posted speed [limit]”).
17
See supra; see also I C.R. at 34-35 (e.g., State’s Request for a Finding on #3, 6, 7, 8); II R.R.
at 6, 30, 15-16, 34).
18
See I C.R. at 34 (e.g., State’s Request for a Finding on #8); see also II R.R. at 15-16, 34.
19
But see Jaganathan v. State, 479 S.W.3d 244, 249 (Tex. Crim. App. 2015) (Meyers, J.,
Johnson and Newell, JJ., dissenting) (observing the Jaganathan majority found such a focus to
be erroneous).
22
speeding to show Trooper Nolan had reasonable suspicion. See Warren v. State,
05-08-01431-CR, 2009 WL 3467013, at *3 (Tex. App.—Dallas Oct. 29, 2009, no
pet.) (not designated for publication) (where an appellant argued his speed of only
five miles over the limit was reasonable under “545.351 of the Texas
Transportation Code,” and evidence from his stop should be suppressed, the Court
held: “We disagree. Appellant was not tried for speeding. Nor was the State
required to prove beyond a reasonable doubt that appellant was speeding in order
to show Burnett had reasonable suspicion to stop appellant’s vehicle....”).20
Appellee also attempted to have the trial court hold the State’s evidence to
an improper – indeed, practically impossible – standard. As noted supra,
Appellee’s cross-examination focused on arguments such as “[Trooper Nolan,] you
can’t say with exact certainty – you can’t say there’s no way [the radar gun]
malfunctioned on that day” (II R.R. at 29 (emphasis added)), that it was “possible
... [Nolan’s] radar [was] measuring” another vehicle (id. at 31 (emphasis added)),
and that “[w]e’re talking just 5 miles over [the speed limit], agreed?” (id. at 35
(emphasis added)). However, the State is not required to establish an offense was
20
See also State v. Garcia, 08-15-00081-CR, 2017 WL 2570935, at *2 (Tex. App.—El Paso
June 14, 2017, pet. ref’d) (not designated for publication) (citing Madden v. State, 242 S.W.3d
504, 508 n.7 (Tex. Crim. App. 2007)), and noting that although:
The trial court concluded that Garcia did not violate Section 545.157(b)(2)(A) ...
the issue before the trial court was not whether Garcia was ultimately guilty of the
traffic violation. The State was not required to prove beyond a reasonable doubt
that Garcia actually committed the traffic offense. The issue was whether an
objective [reasonable suspicion] basis for the stop existed based on the totality of
the circumstances.
(emphasis added)).
23
committed beyond a reasonable doubt, but only whether the officer had a
reasonable suspicion an offense had been committed. In any event, Appellee’s
cross-examination – which would appear to require “exact certainty” – surpasses
even the beyond-a-reasonable-doubt standard. See also Leming, 493 S.W.3d at 564
(“The possibility of an innocent explanation does not deprive the [detaining]
officer of the capacity to entertain reasonable suspicion of criminal conduct).
Unfortunately, as noted infra, the Trial Court’s actual findings and conclusions
indicate it adopted Appellee’s improper and impossible standard.
The only other attack by defense counsel on speeding as a basis for the
traffic stop was that Ochoa v. State required that the officer testify to the
underlying scientific principles of the radar for the Court to find that the use of
radar was scientifically sound under Kelly (II R.R. at 38). However, as several
courts cited above have observed, this is an erroneous position.21 Since the
underlying scientific principles are valid as a matter of law – as the Trial Court
acknowledged in its conclusions (II Supp. C.R. at 9 (Conclusion #5)) – Trooper
Nolan was only required to truthfully testify that he knew how to operate the radar
and that he did it correctly on the day in question, as he did.22 Furthermore, the
determination by Trooper Nolan that the defendant was speeding prior to activating
his radar unit – standing alone – was sufficient to form reasonable suspicion given
21
Supra, citing Masquelette, 579 S.W.2d 478;. Perales, 117 S.W.3d 434; Maysonet, 91 S.W.3d
365; Mills, 99 S.W.3d 200.
22
See I C.R. at 34-35 (e.g., State’s Requested Findings on #6-19); see also II R.R. at 6-7, 15-16,
29-30, 33-34.
24
his training and experience. See, e.g., Jaroszewicz v. Texas Dep’t of Pub. Safety,
03-15-00340-CV, 2016 WL 4506163, at *4 (Tex. App.—Austin Aug. 26, 2016, no
pet.) (not designated for publication) (“Even without crediting the radar evidence,
the ALJ could have found that the officer’s visual observation that Jaroszewicz’s
vehicle was traveling at ‘a high rate of speed for the 30 mph zone’ was sufficient to
establish reasonable suspicion for the officer to conduct the traffic stop”); State v.
Cadena, 08-09-00322-CR, 2010 WL 5541180, at *3 (Tex. App.—El Paso Dec. 29,
2010, no pet.) (not designated for publication) (evidence that officer observed
speeding authorized reasonable suspicion traffic stop of defendant).
Based on his training and experience, upon observing Appellee travelling at
around 75 miles per hour in a 70 zone, Trooper Nolan likely had probable cause –
and in any event, reasonable suspicion – to pull Appellee over for speeding. See
Jaroszewicz, 2016 WL 4506163 at *4; Cadena, 2010 WL 5541180 at *3. The
totality of the circumstances supporting probable cause only grew stronger based
on Nolan’s extensive training, understanding, testing and experience with his radar
gun generally and on the day in question. Nolan properly verified his estimate of
Appellee’s speed on his radar gun, and any conclusion from the Trial Court that
Nolan did not properly use his radar gun on the day in question would not be
supported by the record. The Trial Court abused its discretion in denying the
motion to suppress, and this Court should reverse and order the Trial Court to deny
the motion to suppress on this basis. Worrell, 2017 WL 3222050 at *3; Hamal, 390
25
S.W.3d at 306; Munsey, 424 S.W.3d at 771; Jaganathan, 479 S.W.3d at 247;
Jaroszewicz, 2016 WL 4506163 at *4; see also infra (Trial Court’s Findings and
Conclusions Unsupported and Insufficient).
B. Trooper Nolan Had Reasonable Suspicion Appellee Was Driving in the
Left Lane Without Passing.
Texas Transportation Code Section 544.044 requires that “[t]he operator of a
vehicle or streetcar shall comply with an applicable official traffic-control device
placed as provided by this subtitle…” An official traffic-control device includes a
sign that is consistent with Subtitle C of the Transportation Code, put up by a
public body, and used to regulate, warn, or guide traffic. Tex. Transp. Code. Ann.
§ 541.304 (West, Westlaw through 2017 R.S.). Section 544.011 states “[i]f, on a
highway having more than one lane with vehicles traveling in the same direction,
the Texas Department of Transportation or a local authority places a sign that
directs slower traffic to travel in a lane other than the farthest left lane, the sign
must read “left lane for passing only.” A sign erected by TxDOT in accordance
with Section 544.011 is an official traffic control device and must be complied
with. Mouton v. State, 101 S.W.3d 686, 689 (Tex.App.—Texarkana 2003).
In order for a motorist to violate Section 544.011 for travelling in the left
lane without passing, there must be a sign within a reasonable distance of the
traffic stop. United States v. Castillo, 804 F.3d 361, 365 (5th Cir. 2015), cert.
denied, 136 S. Ct. 1481 (2016). However, an officer does not need conclusive
26
proof that the person actually saw the sign prohibiting the conduct, but only a
reasonable suspicion that he had seen it. Id. at 363; Navarette v. California, 134
S.Ct. 1683 (2014); Abney v. State, 394 S.W.3d 542, 549 (Tex. Crim. App. 2013).
Courts have found reasonable suspicion existed when the officer first saw the
motorist a few miles past the sign. United States v. Castillo, 28 F. Supp. 3d 673,
673 (S.D. Tex. 2014), aff’d, 804 F.3d 361 (5th Cir. 2015) (five miles from sign);
Mouton v. State at 689 (three to four miles from sign); Earvin v. State, 2015 WL
4104701, at *5 (Tex. App.—Houston [14th Dist.] July 7, 2015), petition for
discretionary review refused (Nov. 18, 2015) (six miles from sign); contrast with
Abney at 549 (15 miles from the sign was too far).
1. Courts have found reasonable suspicion when an officer does not observe
a defendant until several miles after the sign, even when there are several
entrances in between.23
Notably, Courts have even found reasonable suspicion where multiple points
of entry existed between the sign and the point at which the officer observed the
motorist. In U.S. v. Castillo, D.P.S. Trooper Collins was parked off of the highway
when he observed a Ford Explorer travelling in the left-hand lane. United States v.
Castillo, 28 F. Supp. 3d 673, 674 (S.D. Tex. 2014), aff’d, 804 F.3d 361 (5th Cir.
2015). There was a “Left Lane for Passing Only” sign roughly 5.3 miles behind
where Collins first saw the Explorer. Id. Furthermore, in that 5.3-mile interval, the
23
As noted supra, Appellee never argued that he had not seen the sign in this case; he argued that
issue was ‘irrelevant’ because he claimed he was passing.
27
highway intersected “several county roads and turnarounds, and two exit and
entrance ramps.” Id. The trooper followed the Explorer; when the young female
passenger averted her eyes, Trooper Collins pulled the vehicle over, believing it
might be a human trafficking situation. Id. at 674. The defendants were charged
with bringing in and harboring aliens; they filed a motion to suppress, arguing
Collins did not have reasonable suspicion to believe they had committed a traffic
violation. Id.
The dispositive question in Castillo was “whether Collins had reasonable
suspicion that the Explorer passed” the “Left Lane for Passing Only” sign 5.3
miles before Collins first saw them. Id. at 675. At the outside, the district court
observed that:
[a] Supreme Court decision from earlier this year reiterates this
relatively low “reasonable suspicion” threshold, observing that the
“level of suspicion the standard requires is ‘considerably less than
proof of wrongdoing by a preponderance of the evidence,’ and
‘obviously less’ than is necessary for probable cause.” Justice Scalia,
who found reasonable suspicion lacking in Navarette, nonetheless
implied that a probability of “1 in 10” or even “1 in 20” would satisfy
the standard.
Id. at 675 (citing Navarette v. California, 134 S. Ct. 1683 (2014); id. at 1695
(Scalia, J., Ginsburg, Sotomayor and Kagan, JJ., dissenting)).
The district court then observed that a “substantially higher probability
exists” that the defendants had seen the “Passing Only” sign. Id. While there were
“two on-ramps, several county roads, and a few turnarounds” in the 5.3 miles
between the sign and the trooper’s locations, that stretch did not pass through
28
heavily populated areas. Id. at 676. The district court recognized that the
reasonable suspicion standard required it to “make the following probabilistic
determination: What percentage of vehicles driving on [that highway] at the exact
point where Collins first observed the Explorer had passed the sign located 5.3
miles behind them?” Id. The district court ultimately concluded the likelihood was
“over 50%, and likely much higher” – well above the “1 in 10” or “1 in 20” odds it
believed Scalia would have found sufficient to satisfy the reasonable suspicion
standard. Id. Determining that “the facts of this case seem to easily surmount the
threshold for reasonable suspicion,” the district court rejected the defendant’s
claim that the stop violated the Fourth Amendment and denied the motion to
suppress. Id. at 677.
The Fifth Circuit affirmed, noting that “Texas courts have found valid stops
that occurred between three and six miles from a sign.” United States v. Castillo,
804 F.3d 361, 365 (5th Cir. 2015), cert. denied, 136 S. Ct. 1481 (2016). Although
the defendants cited United States v. Garcia, the Fifth Circuit rejected that case,
observing that:
We are not persuaded by Garcia’s suggestion that an officer must
have specific knowledge that the suspect passed the sign. See 976
F.Supp.2d at 864 (concluding the officer lacked reasonable suspicion
because he “had absolutely no way of knowing when [the defendant]
entered the highway”). To conclude that an officer does not have
reasonable suspicion unless he knows the defendant passed the sign is
essentially to require certainty that a violation occurred. This would
raise the standard for reasonable suspicion far above probable cause or
even a preponderance of the evidence, in contravention of the
Supreme Court’s instructions.
29
Id. at 366. The Supreme Court denied certiorari from the Fifth Circuit’s decision.
Id. Another court of appeals – citing Castillo – upheld a stop similar to Appellee’s,
observing that “[a]n officer is not required to visually observe a defendant passing
a traffic control device.” Earvin v. State, 14-14-000702-CR, 2015 WL 4104701, at
*4 (Tex. App.—Houston [14th Dist.] July 7, 2015) (pet. ref’d Nov. 18, 2015) (not
designated for publication).
2. Texas Courts – including the Court of Criminal Appeals – have found
reasonable suspicion of a ‘left lane for passing only violation’ even where
the officer observed the violation for less time than in the instant case, and
regardless of whether the defendant might ultimately have a defense to the
conduct.
Although Appellee argued at the hearing, that “[h]e wasn’t somebody
hanging out in the left lane, mile after mile, after mile blocking the road,” (II R.R.
at 38), that is not the standard. Notably, Earvin found the record supported a
finding that the officer reasonably believed the defendant committed “left lane for
passing only” violation when he observed him failing to pass anyone for a period
of “twenty to thirty seconds.” 2015 WL 4104701, at *1, *4. The Court of Criminal
Appeals refused Earvin’s petition for discretionary review; indeed, that Court has
upheld a finding of reasonable suspicion for travelling in the left lane for even less
time.
In Jaganathan v. State, the Trooper observed the appellant driving in the
left lane for around 22 seconds:
30
[a]ppellant passed a “Left Lane for Passing Only” sign. About four or
five seconds later, while Trooper Norsworthy was still in the right
lane, he passed the sign. Appellant’s vehicle continued to travel in the
left lane. Another four or five seconds later, Trooper Norsworthy
moved out of the right lane, across the middle lane, and into the left
lane. The Trooper then followed behind appellant’s vehicle in the left
lane for ten to twelve seconds. During this interval, the middle lane
was clear of traffic, and appellant was not passing any other vehicles.
Appellant turned on her left turn signal, then turned it off and turned
on her right turn signal, and then moved into the middle lane. Trooper
Norsworthy turned on his overhead lights, and the two vehicles pulled
to the side of the road
479 S.W.3d 244, 246 (Tex. Crim. App. 2015), reh’g denied (Feb. 10, 2016)
(emphasis added). Although the trial court denied the motion to suppress, the lower
court of appeals reversed, suggesting several justifications for the appellant’s
failure to move over. Id. Among other reasons, the court of appeals concluded that
the trooper “did not follow appellant for a sufficient amount of time or for a
sufficient distance to conclude that appellant committed a violation,” also stating
that “Trooper Norsworthy had ‘actually followed appellant in the left lane for only
twelve seconds before appellant began pulling over.’” Id. at 246-47. It also
considered the fact that the appellant had not “frustrated the purpose of the ‘Left
Lane for Passing Only’” sign because she had not impeded traffic or put others’
safety at risk. Id. at 247.
The Court of Criminal Appeals reversed the intermediate appellate court,
concluding there was reasonable suspicion of a traffic violation. The State argued
that it was improper to consider whether the appellant had potential justifications
for not moving out of the left lane; while “such matters might entitle a defendant to
31
an instruction on necessity if she were being tried for a traffic violation,” they were
not relevant to whether the officer had reasonable suspicion to stop her. Id.
(emphasis added). The Court agreed, observing that “[t]he question in this case is
not whether appellant was guilty of the traffic offense but whether the trooper had
a reasonable suspicion that she was.” Id. “An officer’s suspicion is not
unreasonable just because facts surrounding a suspected offense might ultimately
show a defense to conduct.” Id. at 248.24 The Court also recognized that it was
incorrect for the lower court to suggest the trooper should have considered ‘the
purpose of the law’ – i.e. safety – in deciding whether he suspected the appellant
had violated it. Id.
3. Based on the totality of Trooper Nolan’s observations, he had reasonable
suspicion regardless of whether Appellee might ultimately have a defense
to the conduct, and the possibility of ‘selective enforcement’ was likewise
irrelevant.
As the majority in Jaganathan concluded, it is incorrect to focus on an
defendant’s “possible defenses to [a traffic offense] rather than whether the officer
simply had a reasonable suspicion” to believe a traffic offense had occurred. See
24
The Jaganathan Court explicitly rejected findings similar to what the Appellee proposed (see I
C.R. at 65 (e.g., Findings 3 & 5, in which Appellee is trying to argue facts which might show a
defense to conviction for the offense)), noting such findings do not vitiate the trooper’s
reasonable suspicion of a traffic offense. Such facts would only matter if the facts establishing it
were so obvious that an objective officer would be unreasonable in failing to realize the conduct
was allowed by law. See Jaganathan, 479 S.W.3d at 248. A possibility that a defendant has a
defense – e.g. “because the white car or the officer’s car might have made it unsafe to move to
the middle lane” – would not preclude reasonable suspicion, because “[t]he reasonable suspicion
standard ‘accepts the risk that officers may stop innocent people.’” Id.
32
Jaganathan v. State, 479 S.W.3d 244, 249 (Tex. Crim. App. 2015) (Meyers, J.,
Johnson and Newell, JJ., dissenting) (observing the majority found such a focus to
be erroneous). Although Appellee also cross-examined Trooper Nolan about the
purpose of the law (II R.R. at 21-22), Jaganathan observed that it is inappropriate
to “consider[] the purpose of the law against driving in the left lane without
passing” in the reasonable suspicion determination:
[The trooper] was not required to consider the purpose of the law
in deciding whether he believed appellant had violated it. Just as
running a stop sign is illegal even if it can be done safely, driving
in the left lane in violation of a posted sign is illegal even if it
can be done safely
Jaganathan, 479 S.W.3d at 248. Finally, Appellee tried to imply Trooper Nolan
was ‘selectively enforcing’ the statute (II R.R. at 24-25, 32-34); however, this
allegation – even if it was true – is irrelevant to the reasonable suspicion analysis:
See Castillo, 28 F. Supp. 3d at 677 (“[t]o the extent there are concerns that the
‘Passing Only’ sign is being selectively enforced, the Supreme Court has held that
those concerns do not enter this Fourth Amendment calculus”) (citing Whren v.
United States, 517 U.S. 806, 813 (1996)).
In evaluating whether a motorist was passing or not, the courts have
considered the distance or time the officer observed the person driving in the left
lane. Jaganathan, 479 S.W.3d at 246 (around 22 seconds); Earvin, 2015 WL
4104701 at *5 (20-30 seconds where individual was not passing or preparing to
pass); Mouton v. State, 101 S.W.3d at 690 (officer followed for at least a mile).
33
Another consideration is the presence of other traffic on the road. In Earvin, the
defendant was actually driving slightly behind another vehicle, but did not pass it
for the 20-30 seconds which the officer observed him. 2015 WL 4104701 at *1. In
other cases, the factual background is silent as to whether other cars were present
on the road.
Trooper Nolan testified at the hearing that he observed the defendant driving
in the left lane of I-35 and not passing any other vehicles (see State’s Ex. 5 at 0:50
(Defendant is not passing anyone), 1:23 (Defendant finally parallel to car in far
right lane, but no car in middle lane), 1:43 (Defendant is finally passing a car
which moved into the middle lane);25 compare with Jaganathan, 479 S.W.3d at
246 (middle lane clear of traffic while the defendant drives in left lane for 22
seconds). The stretch of highway in question is outside of the New Braunfels city
limits and is fairly rural with limited entry points to the interstate.26 Trooper Nolan
testified that the “Left Lane for Passing Only” sign was posted approximately a
half of a mile prior to where he first saw the defendant.27 The picture of the sign
introduced as evidence clearly shows that the sign was posted in conformity with
the requirements of Section 544.011 of the Texas Transportation Code. 28 Trooper
Nolan further testified that the last possible entrance to the interstate (prior to the
25
See also I C.R. at 35-36 (e.g., State’s Request for Findings on #20-26); see also II R.R. at 9-
14, 15, 19, 23-24).
26
See, e.g., I C.R. at 34 (e.g., State’s Request for a Finding on #5); III R.R. at 2-5, State’s Ex. 1
& 2 (maps show rural area with relatively few roads); State’s Ex. 3 & 4 (pictures of area before
and after sign show rural, sparsely populated surroundings), State’s Ex. 5 (same).
27
See I C.R. at 33-36 (e.g., State’s Request for Findings on #4, 20-24); II R.R. at 9-14, 23-24.
28
III R.R. at 4; see also Tex. Transp. Code Ann. § 544.011.
34
point where he observed the defendant) was before the sign and that it was very
likely that the defendant would have seen it, even if he had entered the highway at
that point.29 Indeed, Appellee did not contest that he had seen the sign in closing (II
R.R. at 38 (“...all this about the sign doesn’t even matter, Judge. He was
passing...”), and Appellee’s own proposed finding of fact appears to admit he
passed the sign (I C.R. at 65 (Appellee’s Proposed Finding #4 states “The
[Appellee] passed the ‘Left Lane for Passing Only’ sign but it is of no relevance
because the [Appellee] was in fact ‘passing’”).
When Trooper Nolan first observed the defendant’s vehicle, he was in the
left lane well ahead of the vehicle in the center lane.30 Although the camera loses
sight of the defendant’s vehicle, Trooper Nolan testified that he had eyes on him
the majority of the time, and that he never saw him leave the left lane from when
he first saw him until he turned his lights on to conduct a traffic stop.31 Trooper
Nolan observed the defendant for approximately 1.5 miles (approximately 30
seconds). See id. (n.31). At no point during that time did the defendant pass or
attempt to pass another vehicle. See id.; compare with Jaganathan, 479 S.W.3d at
246 (around 22 seconds). Therefore, Trooper Nolan had sufficient reasonable
suspicion to pull over Appellee for driving in the left lane without passing shortly
29
See, e.g., I C.R. at 33-36 (e.g., State’s Request for Findings on #4, 20-24); II R.R. at 9-14, 23-
24.
30
See I C.R. at 33-36 (e.g. State’s Request for Findings on #4, 22-23, 25); II R.R. at 15, 19;
State’s Ex. 5 at 0:50.
31
See I C.R. at 36 (e.g. State’s Request for Findings on #23, 25-26); II R.R. at 9-14, 17-21;
State’s Ex. 5 at 0:50-1:43.
35
after a posted sign after observing him travelling in the left lane of IH35 for
approximately 30 seconds while not passing or attempting to pass another vehicle.
The Court should likewise find the Trial Court abused its discretion in denying the
motion to suppress on this basis, reverse and order the Trial Court to deny the
motion to suppress. Jaganathan, 479 S.W.3d at 246-47; Hamal, 390 S.W.3d at
306; Munsey, 424 S.W.3d at 771; see also infra (Trial Court’s Findings and
Conclusions Unsupported and Insufficient).
C. The Trial Court’s Findings Are Not Supported by the Record and Warrant
Reversal in and of Themselves.
As noted supra, Courts will give “almost complete deference to the trial
court’s determination of historical facts, but [will] review court’s application of the
law to those facts de novo.” Worrell, 2017 WL 3222050, at *3. Reviewing courts
are “not bound by the trial court’s findings and conclusions that are not supported
by the record.” Id.; see also Mazuca, 375 S.W.3d at 308-09 (“rejecting trial court’s
conclusion as to ‘flagrancy of the police action’ that was not supported by
record”)).
In the instant case, as noted in above ‘speeding’ and ‘driving in the left lane
without passing’ sections, Appellee’s cross-examination and arguments at the
hearing were contrary to established law. Unfortunately, the Trial Court’s explicit
36
findings and conclusions32 indicate it adopted Appellee’s erroneous positions, were
not supported by the record, internally inconsistent, contrary to established law and
weigh in favor of disregarding them entirely and reversing the order of
suppression.
Trial Court’s33 Finding #2
Although the Court’s Finding #2 finds the Trooper’s testimony regarding
whether the Appellee had seen the traffic control device ‘not credible’ – apparently
because it may have been “speculative” (II Supp. C.R. at 7) –as noted in several
cases,34 an officer does not need conclusive proof that the person actually saw the
sign prohibiting the conduct, but only a reasonable suspicion that he had seen it.
Castillo, 804 F.3d at 363; Navarette v. California, 134 S.Ct. 1683 (2014); Abney v.
State, 394 S.W.3d 542, 549 (Tex. Crim. App. 2013). Indeed, several courts have
upheld reasonable suspicion stops when the officer essentially “speculated” that
the defendant had passed the traffic control device much further back – with a
corresponding lesser probability – than in the instant case. See, e.g., Castillo, 28 F.
Supp. 3d at 674-75 (“Left Lane for Passing Only” sign roughly 5.3 miles behind
where officer first saw the defendant; also observed Justice Scalia’s dissenting
32
The Trial Court again failed to make explicit essential findings addressing the potentially
dispositive issues (see infra).
33
Most of the following arguments were also submitted to the Trial Court in the State’s
Respectful Objection to the Court’s Findings and Conclusions & Request for Additional
Findings and Conclusions Under Tex. R. Civ. P. 298 (III Supp. C.R. at 4 (as noted, filed two
days after the Trial Court’s findings, the day before the record was due, but just subsequent to
the filing of the supplemental record in this Court)).
34
Including those cited in the State’s Motion for Rehearing (I C.R. at 49 (at page 6 of the
Motion)).
37
opinion in Navarette that a probability of “1 in 10” or even “1 in 20” would satisfy
the reasonable suspicion standard); Castillo, 804 F.3d at 365 (the Fifth Circuit
rejected “Garcia’s suggestion that an officer must have specific knowledge that the
suspect passed the sign,” further noting that “Texas courts have found valid stops
that occurred between three and six miles from a sign”) (emphasis in original);
Hamal, 390 S.W.3d at 306 (“Reasonable suspicion exists when an officer is aware
of specific articulable facts that, when combined with rational inferences from
those facts, would lead him to reasonably suspect that a particular person has
engaged or is engaging in criminal activity”). As noted above, even Appellee did
not argue and appeared to admit he had seen the sign (II R.R. at 38; I C.R. at 65).
Furthermore, reasonable suspicion is ‘speculation,’ not certainty, as the Appellee
tried to argue at the hearing (see II R.R. at 29, 31). The Trial Court apparently
adopted Appellee’s erroneous and practically impossible standard, and this finding
was not supported by the record. See supra.
Trial Court’s Findings #3, 5, 6, 7 and 9
In Findings 3, 5 and 7, the Trial Court found Nolan’s testimony that he
observed Appellee travelling over the limit of 70 miles per hour to be “not
credible;” the Court states that “[t]he [Appellee’s] vehicle did not appear to be
travelling any faster or slower than any other vehicle travelling in any lane,
including the ‘passing lane’ prior to the [Appellee’s] vehicle” (II Supp. C.R. at 7).
38
There are a few problems with these findings. First, to the extent the Trial
Court is implying ‘selective enforcement’ of the speeding statute, that is irrelevant
to the reasonable suspicion analysis. See Castillo, 28 F. Supp. 3d at 677; see also
Gordon, 801 S.W.2d at 912 (no ‘pretextual stop’ doctrine; the subjective intent of
an officer is irrelevant). Second, the Trial Court makes no finding as to “[w]hether
most people speed at the location on Interstate Highway 35 where Trooper Nolan
first observed the [Appellee],” though the State requested one.35 In fact, in Finding
6, the Court seems to credit Nolan’s testimony that “[g]enerally in that location
most people are [speeding]” (II Supp. C.R. at 7). If most people are speeding in
that location (Finding 6), and Appellee was not travelling “slower than any other
vehicle travelling in any lane,” (Finding 5) then more likely than not, Appellee was
speeding. This is more than is required to show reasonable suspicion or even
probable cause of speeding. Moreover, the Trial Court appears to rely (see, e.g.,
Finding 6) on Appellee’s proposed finding that “[t]he [Appellee’s] speed, 75 in a
70, was reasonable and prudent for the driving conditions at the time of the stop” (I
C.R. at 65).36 However, as the State pointed out in its Motion for Reconsideration,
“the State is not required to prove beyond a reasonable doubt that the [Appellee]
was speeding to show Trooper Nolan had reasonable suspicion.”37
35
See I C.R. at 32 (Request for a Finding on #2).
36
The Trial Court appears to assert that speeding is relative, e.g.‘if all cars are driving 90 in a 75-
mile-per-hour zone, a trooper cannot have reasonable suspicion that a given defendant was
speeding, even though he was driving 90 in a 75 zone.’
37
I C.R. at 49 (citing Warren v. State, 2009 WL 3467013 at *3).
39
Finding 7 is vague, in that it merely states the Appellee “was not traveling at
a ‘high rate of speed.’” The Court does not explicitly define what it believes
constitutes a ‘high rate of speed’ – whether it is evaluating that speed in
comparison to the posted speed limit or to the relative speed of other cars on the
highway. The Trial Court should have made explicit findings regarding exactly
how fast the evidence showed Appellee was driving (e.g. 75 miles per hour) and
how far above the posted speed limit that was (e.g. five miles per hour above the
70-mile-per-hour posted limit).38 Moreover, if the Court believes the reason the
Appellee was not speeding was because ‘75 in a 70 was reasonable and prudent for
the driving conditions,’ the Trial Court should have explicitly stated that was its
basis.
Finally, the foregoing findings are internally inconsistent with Finding 9.
Despite Trooper Nolan’s testimony that it was his job to determine which vehicle’s
speed the radar “cone” was picking up – and his testimony that he has never made
a mistake when determining which vehicle’s speed he was looking at – the Court
noted he did not testify there was “no possibility that the radar had picked up the
speed of another vehicle....” (II Supp. C.R. at 8 (Finding 9)). The Trial Court made
no finding that Nolan was not credible when he stated his radar gun showed a
finding of 75 miles per hour in a 70 mile-per-hour zone, despite the State’s
requests. The Trial Court appears to conclude there is a “possibility” the radar cone
38
See I C.R. at 32 (e.g., State’s Request for Findings on #6-8 related to Appellee’s actual speed).
40
showed someone else around Defendant was traveling at 75 miles per hour in a 70-
mile-per-hour zone. Aside from the fact that the mere ‘possibility’ of innocent
conduct does not vitiate reasonable suspicion,39 assume for the sake of argument
that Trooper Nolan did read the speed of another “vehicle in the area at the same
time” (II Supp. C.R. at 8 (Finding 9)). According to the Trial Court’s other
findings, “[t]he [Appellee’s] vehicle did not appear to be travelling any ... slower
than any other vehicle travelling in any lane....” (id. at 7-8 (Finding 5) (emphasis
added)). Even if Nolan’s radar gun showed a vehicle “around” Appellee was
traveling at 75 in a 70 zone, if Appellee was not traveling slower than any other
vehicle, Appellee was traveling at least 75 in a 70-mile-per-hour zone, and the
Trial Court should have entered an express finding to that effect. In any event,
based on the foregoing, it appears the Trial Court impliedly found Appellee was
speeding at 75 in a 70 zone, and this Court should reverse the Trial Court’s order
of suppression on this basis.40
Based on the significant problems with all findings in which the Trial Court
explicitly details the basis for its ‘not credible’ determination, this Court should
39
Once again, the Trial Court appears to have adopted Appellee’s erroneous and practically
unattainable standard of ‘absolute certainty,’ which is far more than reasonable suspicion
requires. As the Jaganathan Court noted:
“A determination that reasonable suspicion exists ... need not rule out the
possibility of innocent conduct.” The reasonable suspicion standard “accepts the
risk that officers may stop innocent people.” The mere possibility that an act is
justified will not negate reasonable suspicion.
479 S.W.3d at 248.
40
See also I C.R. at 65 (in his own proposed finding of fact #5, Appellee states: “The
[Appellee’s] speed, 75 in a 70, was reasonable and prudent for the driving conditions at the time
of the stop,” appearing to admit he was speeding).
41
also reject the Trial Court’s general ‘not credible’ findings which did not provide
an explicit basis (II Supp. C.R. at 7-8 (Findings 1 and 8)). Additionally, those
findings cite – and are inconsistent with – the video, which this Court may review
de novo.41 See State’s Ex. 5 at 0:50. Moreover, Finding 8 also appears to conflict
with Findings 3 and 5; the Trial Court asserts in Finding 8 that Appellee is passing
another vehicle throughout the video, but in Findings 3 and 5, the Trial Court
asserts Appellee is not travelling faster than “any other vehicle travelling in any
lane” (see II Supp. C.R. at 7-8). Because the Trial Court’s findings are conflicting
and incorrectly apply the law to the facts, its conclusions are also incorrect and not
supported by the record (see II Supp. C.R. at 8-9). Furthermore, the Trial Court
made these conclusions without explicitly making essential findings on the State’s
requested and potentially dispositive issues (I C.R. at 32-36 (e.g. State’s Request
for Findings on #6-19, 20-26); see also III Supp. C.R. at 4 (Objections and Request
for Additional Findings)).
Because the Trial Court failed to make the requested explicit essential
findings, and because the Trial Court’s explicit findings and conclusions indicate it
adopted Appellee’s erroneous positions, were not supported by the record, were
41
See State v. Piedra, 13-13-00540-CR, 2015 WL 5576346, at *5 (Tex. App.—Corpus Christi
June 25, 2015, no pet.) (not designated for publication) (where the Court of Appeals – in
reversing the trial court’s granting of a motion to suppress – noted that where “‘the nature of the
video evidence does not pivot on an evaluation of credibility and demeanor[,]’and where the trial
court makes no finding that a witness did not actually see what was depicted in the video, it is
acceptable to view the video evidence de novo”). In the instant case, not only did the Trial Court
never make a finding the Trooper did not see what was depicted in the video, the evidence would
not have supported such a finding if it had.
42
internally inconsistent and were contrary to established law, the Trial Court’s
decision was “arbitrary, unreasonable, or ‘outside the zone of reasonable
disagreement.’” See Worrell, 2017 WL 3222050 at *3. Accordingly, this Court
should reject the Trial Court’s findings and conclusions, find the Trial Court
abused its discretion, and reverse the order of suppression. See id. at *3; see also
Mazuca, 375 S.W.3d at 308-09.42 Alternatively, the Court should abate and remand
again for the essential findings. But see infra.
D. The Trial Court – Even After Remand – Has Continued to Refuse to
Explicitly Answer Potentially Dispositive Issues the State Raised in its May
22nd Supplemental Request for Essential Findings.
In State v. Elias, the trial court granted the defendant’s motion to suppress
evidence. Although the court of appeals affirmed the case, the Court of Criminal
Appeals reversed, noting the court of appeals “should have remanded the cause to
the trial court for entry of additional, specific findings of fact” with respect to a
potentially dispositive issue. 339 S.W.3d 667, 668 (Tex. Crim. App. 2011).
In Elias, only one witness – a sheriff’s deputy – testified at the pretrial
hearing. Id. at 669. He testified that the witness may have failed to signal a right
turn at a stop sign, potentially involving a violation of Texas Transportation Code
§ 545.104(a) (requiring a driver to use a signal when turning) or § 545.104(b)
42
The State also argues the Trial Court erred in not granting its Motion for Reconsideration and
reverse its order suppressing the evidence. (see I C.R. at 49; I Supp. C.R. at 6; II Supp. C.R. at
7). However, in the event the Court reverses the Order of Suppression, this issue will be moot.
43
(requiring a driver to signal his intention to turn continuously for at least 100 feet
before the turn). Id. at 675. Although the deputy’s articulated reason for the stop
was based on § 545.104(a), the deputy admitted at the hearing that he had not see
whether the defendant was signaling at the exact moment of the turn – though the
deputy noted the defendant had not been signaling earlier, while within 100 feet of
the turn. Id. at 670-71.
The trial court granted the motion to suppress and “made explicit findings of
fact and conclusions of law that it obviously deemed dispositive of the motion to
suppress.” Id. at 674. However, the trial court only mentioned the fact that the
deputy could not see whether the defendant was signaling at the moment he turned;
the trial court made no finding regarding the deputy’s testimony that the defendant
was not signaling while he was within 100 feet of the turn. Id. at 674.
The Court of Criminal appeals found the trial court had erred to conclude its
finding was dispositive of the motion to suppress. Id. Noting the standard was
whether the deputy had some objective basis for the stop, the Court observed that
“[i]t was uncontested – and the trial court did not find otherwise – that [Deputy]
Sanchez was able to see ... that there was no turn signal flashing in the moments
before the appellee made the turn, when the van was positioned within the last one
hundred feet of the intersection.” Id. at 675 (emphasis in original) (also citing §
545.104(b)).
44
The defendant tried to argue on appeal that the Court should “invoke the
Ross presumption that the trial court simply disbelieved [the deputy’s] uncontested
testimony” related the observed violation of § 545.104(b). Id. However, the Court
determined that:
the more appropriate presumption, after Cullen, is that the explicit
findings of fact that the trial court did enter are those it deemed
“essential” to its ruling, and that it made no finding of fact whatsoever
with respect to other fact or credibility issues because it regarded them
(however erroneously) as peripheral or non-essential to its ultimate
legal holding.
Id. at 675-76. The Court further observed that the omission of findings on the
potentially dispositive issue constituted a “failure ... to act” for purposes of Rule of
Appellate Procedure 44.4, and that the court of appeals was authorized – and in
fact, required – to first remand the cause for the entry of supplemental findings to
avoid “appellate speculation” before it could affirm the trial court’s judgment. Id.
at 676-77 (citing Tex. R. App. P. 44.4).
In Elias, the trial court appears to have issued its findings sua sponte, and
the State apparently did not object, point out the potentially dispositive issues, and
request findings on those issues. See id. at 680 (Keller, P.J., concurring). While at
first glance Elias would appear to require an abatement and remand for the State’s
requested potentially dispositive findings, the stronger procedural history
underlying the instant case might support the conclusion that the trial court
implicitly made findings which favor the State.
45
Unlike Elias, in the instant case, the State timely requested findings, filed
proposed findings (with citations to the record), asked the trial court in the
alternative to make its own findings on explicitly detailed potentially dispositive
issues, and submitted a notice of past due findings, as noted by the Court in its
Order. State v. Garrett, 03-17-00333-CR, 2017 WL 3044379, at *1 (Tex. App.—
Austin July 14, 2017, no pet.) (not designated for publication). The Trial Court did
not make findings before the record was submitted to this Court. This Court
observed in its Order that it was abating the appeal and remanding the cause to the
Trial Court so that it could state its “‘essential’ findings of fact and conclusions of
law on the motion to suppress, as the trial court is required to do when requested
by the losing party.... We abate the appeals and remand the causes to the trial court
so that it can make its findings of fact and conclusions of law.” Id. Despite the fact
that the essential findings and the potentially dispositive issues were specifically
requested by the State, the Trial Court declined to make any express findings – for
or against the State – on the vast majority of those issues.
In such circumstances, the Court should view the Trial Court’s continued
refusal to make explicit findings to be an implicit recognition that the facts in the
those issues were favorable to the State. In fact, this is not far removed from what
ultimately happened in Elias. Following an abatement and remand in that case for
findings regarding the deputy’s testimony of a violation of § 545.104(b), the trial
court stopped short of acknowledging the facts favored the State, finding only that:
46
....
7. Deputy Sanchez testified that he saw the van stopped at the
intersection at the stop sign.
8. Deputy Sanchez testified that he passed the van going
approximately 50 miles per hour and drove 30 yards north on
Zaragosa, then turned around and conducted a traffic stop of the van,
that was traveling south on Zaragosa, because ‘it failed to signal a
right turn from that stop.’
9. Deputy Sanchez testified that he passed the Defendant Elias while
the Defendant was stationary in a lawful stop and that the Defendant
hadn’t committed a ticketable offense yet.
10. Deputy Sanchez testified that he did not see the Defendant, Abran
Elias (‘Elias’), fail to signal intent to turn right from his vantage point
as he proceeded 30 yards away on Zaragosa.
The [trial] court also made the following conclusions of law:
1. Deputy Sanchez had no reasonable suspicion or probable cause to
believe that Defendant Elias had committed a traffic violation in his
presence while Defendant's Elias’ vehicle was stopped at the
intersection of Sombra del Sol and Zaragosa, in El Paso County,
Texas.
2. The Court finds no reasonable suspicion to believe that the traffic
violation charged occurred or that Defendant Elias had committed a
different traffic offense that would have supported the traffic stop,
specifically, a failure to signal his intention to turn within a hundred
feet of the intersection.
....
State v. Elias, 08-08-00085-CR, 2012 WL 4392245, at *4 (Tex. App.—El Paso
Sept. 26, 2012, pet. ref’d) (not designated for publication) (in which the court of
appeals observed “[s]ignificantly, the trial judge did not make any express finding
that she disbelieved any aspect of Sanchez’s testimony, including his testimony
47
that Elias’ van was not signaling either a left or right turn when Sanchez
approached and drove through the intersection”) (emphasis added). Recognizing
that the trial court had refused to explicitly address the matter upon abatement, the
court of appeals essentially determined the trial court had implicitly found the
testimony was favorable to the State’s position:
In its supplemental findings, the trial court has again failed to address
Sanchez’s testimony that the van’s turn signals were not flashing
when he approached the intersection and the court has not made an
adverse finding on Sanchez’s credibility on this dispositive issue.
Given that the trial court has been given an opportunity to clarify
whether it disbelieved any aspect of Sanchez’s testimony and has
chosen not to do so, we conclude that the trial court believed all of
Sanchez’s testimony and the court did not make any explicit findings
on this dispositive issue because it has erroneously regarded the
findings as peripheral or non-essential.
Id. at *6 (emphasis added). The court of appeals then found that the deputy’s
testimony – that the van was not signaling while at the stop sign – necessarily
meant the deputy had at least a reasonable suspicion that Elias had violated §
545.104(b) by failing to signal continuously for 100 feet prior to the turn. Id.
In the instant case, the Trial Court has arguably had more of an opportunity
to make its essential findings; the State pointed out the potentially dispositive
issues before the record was filed with the Court and filed a notice of past due
findings, the case was abated for the Trial Court to make potentially dispositive
findings, and the Trial Court’s findings still do not explicitly address the issues
pointed out by the State. Despite the fact that the State asked the Trial Court to
state whether several of the Trooper’s factual assertions were true or not, the Trial
48
Court’s refusal to make any explicit finding – either for or against the State’s
position – indicates the Trial Court implicitly found the Trooper’s factual
assertions on said issues were true. Particularly when combined with the Trial
Court’s internally inconsistent and clearly erroneous findings,43 in such
circumstances – as in Elias following its abatement – because the Trial Court has
already had multiple opportunities to make explicit findings, this Court should
recognize it implicitly found the unaddressed facts were favorable to the State’s
position on the expressly identified potentially dispositive issues. See id. In the
particular circumstances of this case, such a holding is logical, consistent with
precedent, and supports judicial efficiency.
E. Alternatively, the Court Should Again Abate and Remand the Case and
Require the Trial Court to Make Explicit Essential Findings on the State’s
Requested Potentially Dispositive Issues.
As this Court observed in State v. Dubord:
In assessing whether reasonable suspicion existed, we consider the
totality of the circumstances. [Ford v. State, 158 S.W.3d 488, 492–93
(Tex. Crim. App. 2005)].
When asked, the trial court must make findings of fact and
conclusions of law adequate to provide us with a basis on which to
review its application of law to the facts. State v. Saenz, 411 S.W.3d
488, 495 (Tex.Crim.App.2013). The trial court must make findings
covering every potentially dispositive issue that might reasonably be
said to have arisen in the course of the suppression proceedings. State
v. Elias, 339 S.W.3d 667, 676 (Tex.Crim.App.2011). If findings are
requested and made but provide an inadequate basis upon which to
43
As detailed by the State supra.
49
make a legal conclusion, we must abate and remand to the trial court
for additional findings.
State v. Dubord, 03-15-00553-CR, 2016 WL 858929, at *1 (Tex. App.—Austin
Mar. 2, 2016, no pet.) (not designated for publication). In that case, because the
trial court’s findings and conclusions did not address the officer’s testimony that
“several events in addition to the lane changes ... formed the basis for the stop,”
including an observed speeding violation and other traffic offenses, the Court
concluded the findings did not allow it to properly assess the suppression issue and
abated and remanded the case for the necessary supplemental findings. Id. at *2.
Similarly, in State v. Adams, the State argued the trial court had erred in
“refusing to file the more specific findings of fact requested by the State.” 454
S.W.3d 48, 49 (Tex. App.—San Antonio 2014, no pet.). The court first determined
what essential findings on potentially dispositive issues the trial court was required
to make. Id. at 42-43. After reviewing the applicable law, the court observed that:
...the trial court’s findings of fact and conclusions of law fall short of
“covering every potentially dispositive issue that might reasonably be
said to have arisen in the course of the suppression proceedings.”
Without further findings of fact, this court cannot determine whether
the trial court’s conclusions of law were in error. We conclude the
State’s requested specific findings of fact are pertinent and required to
assure the “proper presentation of” this case on appeal.
Id. at 47–48 (citing, among others: Elias, 339 S.W.3d at 675-76; Cullen, 195
S.W.3d 696; Tex. R. App. P. 44.4).
To avoid unnecessary repetition, in the event the Court will not reverse the
order of suppression on the current record, the State relies on its cited case law,
50
requested findings and argument, supra, to assert that the Trial Court in this case
has precluded the “proper presentation of” this case on appeal. See id. Despite the
State’s particular requests44 for findings on essential and potentially dispositive
issues, the Trial Court’s findings of fact and conclusions of law fall short of
“covering every potentially dispositive issue that might reasonably be said to have
arisen in the course of the suppression proceedings.” See Adams, 454 S.W.3d at
47-48. This Court should therefore abate and remand the case a second time, with
orders for the Trial Court to address the essential and potentially dispositive issues,
including those specified in the State’s Supplemental Request and its Respectful
Objection and Request for Additional Findings (I C.R. at 31-39; III Supp. C.R. at
4-21). See Adams, 454 S.W.3d at 47-48; Dubord, 2016 WL 858929 at *1-2; State
v. Mercantel, 03-16-00820-CR, 2017 WL 74415, at *1 (Tex. App.—Austin Jan. 4,
2017, no pet.) (not designated for publication); Elias, 339 S.W.3d at 675-76;
Cullen, 195 S.W.3d 696; Tex. R. App. P. 44.4.
44
See I C.R. at 31-39 (State’s Supplemental Request for Findings of Fact and Conclusions of
Law, citing to the record and case law in asking the Trial Court to make determinations as to
“whether” certain testified-to facts occurred).
51
V. PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas respectfully
prays that this Honorable Court reverse the Trial Court’s Order of Suppression and
order the Motion to Suppress be denied in all things. Alternatively, the State prays
that the Court abate and remand the cause to the Trial Court a second time and
order said Court to enter explicit essential findings on the potentially dispositive
issues in the case. The State also prays for all other relief to which it may be
entitled.
Respectfully submitted,
/s/ Joshua D. Presley
Joshua D. Presley, SBN 24088254
preslj@co.comal.tx.us
Assistant Criminal District Attorney
Comal County Courthouse Annex
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130-5191
(830) 221-1300 Telephone
(830) 608-2008 Fax
52
Certificate of Service
I, Joshua D. Presley, Assistant Criminal District Attorney for Comal County,
Texas, hereby certify that a true and correct copy of the above and foregoing
State’s Brief was sent to BRANDOM GARRETT’s attorney of record in this
matter:
Lance S. Turnbow
lanceturnbow@hotmail.com
401-B South LBJ Drive, Suite 8
San Marcos, TX 78666
Attorney for Defendant/Appellee
By electronic service through efile.txcourts.gov to the above-listed email address
on this, the 2nd day of January, 2018. A copy of this document will also be sent to
the Trial Court’s Administrator at: evansa@co.comal.tx.us today through
efile.txcourts.gov for delivery to the Honorable Charles A. Stephens, II.
/s/ Joshua D. Presley
Joshua D. Presley
Certificate of Compliance
I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas
Rules of Appellate Procedure that the instant brief is computer-generated using
Microsoft Word and said computer program has identified that there are 14,850
words or less within the portions of this brief required to be counted by Rule
9.4(i)(1) & (2) of the Texas Rules of Appellate Procedure.
The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.
/s/ Joshua D. Presley
Joshua D. Presley
53
State v. Brandom Garrett
Combined Opinion