PD-1012-15
PD-1012-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/31/2015 12:00:00 AM
Accepted 9/1/2015 11:14:36 AM
ABEL ACOSTA
IN THE CLERK
TEXAS COURT OF CRIMINAL APPEALS
KEVIN DEAN DUNN,
Petitioner,
vs. No. ________________________
THE STATE OF TEXAS,
Respondent
********************************************************************
PETITION FOR DISCRETIONARY REVIEW
********************************************************************
WYDE & ASSOCIATES, LLP
Dan L. Wyde
SBN 22095500
10100 N. Central Expressway,
Suite 590
Dallas, Texas 75231
Tel 214-521-9100
September 1, 2015 Fax 214-521-9130
wydelaw@gmail.com
PETITIONER
PETITIONER REQUESTS ORAL ARGUMENT
1
Identity of Parties
The appellant is Kevin Dean Dunn, who is the defendant in the State of
Texas v. Kevin Dean Dunn, Case Number 1298839. Appellee is the State of
Texas. The appellant appeals from the trial court's denial of his motion to suppress
and motion to suppress unlawfully obtained evidence and the trial court's verdict
of guilty and its written judgment.
Appellant's trial and appellate counsel is:
1. Hon. Dan L. Wyde
10100 North Central Expressway, Suite 590
Dallas, Texas 75231
Tel.: 214.521.9100
Fax: 214.521.9130
Email: wydela w@gmail.com
Appellee' s trial counsel is:
1. Hon. Charles A. Boulware
Hon. Jacob R. Lilly
Assistant Criminal District Attorneys, Tarrant County, Texas
Tim Curry Criminal Justice Center, Fifth Floor
401W. Belknap Street
Fort Worth, Texas 76196
Tel.: 817-884-2608
Appellee' s appellate counsel is:
1. Hon. Charles M. Mallin
Assistant Criminal District Attorney, Tarrant County, Texas
Tim Curry Criminal Justice Center
401 W. Belknap StreetFort
Worth, Texas 76196 Tel.:
817-884-2608
2
Trial Judge Is:
Judge Jerry Woodlock
Visiting Judge
2655 Harris Street
Gainseville, TX 76240
3
TABLE OF CONTENTS
Identity of Judge, Parties, and Counsel………………………………………2
Index of Authorities…………………………………………………………..5
Statement Regarding Oral Argument………………………………………....6
Statement of the Case…………………………………………………………6
Statement of Procedural History………………………………………………6
Abbreviations………………………………………………………………….7
Grounds for Review…………………………………………………………...7
Argument………………………………………………………………………8
First Issue: Whether the trial court erroneously denied appellant's Motion to
Suppress Unlawfully Obtained Evidence on the grounds that the officer did not have
reasonable suspicion or probable cause to effectuate a traffic stop on the Appellant.
Second Issue: Whether the trial court erroneously charged the jury regarding the
burden of proof necessary for law enforcement to initiate any encounter or detention
of the appellant while operating a motor vehicle, as set forth in Whren v. United
States, 517 U.S. 806, 116 S.Ct. 1769 (1996).
4
Index of Authorities
Statutes
Texas Code of Criminal Procedure 36.14 ………………………………….....p. 14
Texas Code of Criminal Procedure 38.23 ………………………………….…p. 124
Texas Transportation Code §545.060(a) ……………………………… pgs. 12, 13
Cases
Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App.1994); ………….…p. 14
Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984); ………….........pgs. 10, 16
Baldez v. State, 386 S.W.3d 324, 326 (Tex. Crim. App. 2012); ………………..p. 15
Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, (1984); ………….…p. 11
Hernandez v. State, 983 S.W.2d 867, 868-869, 871
(Tex.App.-Austin 1998); ……………………………………………… pgs. 11, 12, 13
Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.ed.2d 889 (1968); …………..p. 11
Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000); ……………………p. 15
Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, (1996); ...pgs. 7, 9, 10,14
15, 16
Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App.1997); ………………………p. 11
Rules
Texas Rule of Appellate Procedure 66.3 …………………………………………p. 8
5
STATEMENT REGARDING ORAL ARGUMENT
Oral argument should be granted in this appeal as it will aid the Court in
reviewing the totality of the evidence presented at the suppression hearing, as well as
to resolve the standard for an officer to effectuate the stop of a vehicle for a traffic
offense.
STATEMENT OF THE CASE
This case concerns a traffic stop based on the transportation code offense of
failure to maintain a single lane. The stop resulted in the appellant’s arrest and
subsequent conviction for the offense of driving while intoxicated. Appellant filed a
pre-trial motion to suppress which was denied by the trial court. Appellant also
submitted the issue of the reasonableness of the stop to the jury. Appellant contends
that the trial court applied the wrong evidentiary standard for a detention based on a
traffic violation, and incorrectly instructed the jury on the legal standard.
STATEMENT OF PROCEDURAL HISTORY
(1) Date of opinion from Court of Appeals: May 21, 2015
(2) Date of Motion for Rehearing: June 22, 2015
(3) Date Motion for Rehearing Disposed: July 16, 2015
6
ABBREVIATIONS AND REFERENCES
The required documents and several other key documents from the trial are
attached to this Petition in the Appendix. The pages of the Appendix are numbered
in the lower, right-hand corner for ease of reference and use by the Court. The
Clerk’s Record (CR) is referred to by page number (e.g., CR422). The Reporter’s
Record (RR) is referred to by volume number, then page number (e.g. 3 RR 88-90).
GROUNDS FOR REVIEW
1. Probable Cause vs. Reasonable Suspicion for a Traffic Stop
The trial court only found that there was reasonable suspicion to believe the
traffic offense occurred. Appellant contends that, pursuant to Whren v. United States,
517 U.S. 806, 116 S.Ct. 1769 (1996), the proper standard is probable cause, not
reasonable suspicion. “The decision to stop an automobile is reasonable where the
police have probable cause to believe a traffic stop occurred.” Whren at 810.
Appellant contends that an investigative detention can be based on reasonable
suspicion of criminal activity or probable cause of a traffic violation, and that the
correct legal standard for a stop based on failure to maintain a single lane is probable
cause.
7
2. Improper Jury Instruction
The trial court improperly instructed the jury that the stop of appellant was
reasonable if reasonable suspicion existed to believe a traffic violation had occurred.
The proper instruction would have been that the stop was reasonable if probable
cause existed to believe a traffic violation had occurred.
The Court of Appeals for the Second District, Fort Worth, Texas denied
appellants appeal and affirmed the trial court’s rulings. Appellant contends that the
Court of Appeals has decided an important question of law that has not been but
should be settled by the Court of Criminal Appeals, or has decided an important
question of law which conflicts with a decision of the Supreme Court of the United
States, and that therefore the Court of Criminal Appeals should grant review of this
petition, pursuant to Texas Rules of Appellate Procedure, Rule 66.3 (b) and (c).
ARGUMENT
This case is an appeal from a verdict of guilty wherein the appellant was
accused of Driving While Intoxicated, a Class A Misdemeanor. On August 24,
2012, the Appellant's vehicle was stopped pursuant to a traffic stop by Officer
Daniel McLain, a DWI Officer with the Grapevine Police Department, for
failure to maintain a single lane of travel. RR. Vol. 2, 5-10. Appellant was
subsequently arrested for driving while intoxicated after the officer
8
detected the smell of alcohol on his breath and slurred speech, and the
appellant refused to perform field sobriety exercises. RR, Ex. Index State
Ex. 1.
The trial court erred when it failed to grant appellant's Motion to
Suppress. The trial court further erred when it erroneously charged the jury
regarding the burden of proof necessary for law enforcement to initiate any
encounter or detention of the appellant while operating a motor vehicle for a
traffic offense as opposed to a criminal offense.
First Issue: Whether the trial court erroneously denied appellant's Motion
to Suppress Unlawfully Obtained Evidence on the grounds that the officer did
not have reasonable suspicion or probable cause to effectuate a traffic stop on the
Appellant.
Second Issue: Whether the trial court erroneously charged the jury
regarding the burden of proof necessary for law enforcement to initiate any
encounter or detention of the appellant while operating a motor vehicle, as set
forth in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996).
After the Whren decision, it can be said that what has emerged in
practice is a dual standard. The standard requires probable cause to stop for a
traffic violation or reasonable suspicion that the motorist has committed or is
9
committing a crime. If Officer McClain had stopped appellant on the belief that
appellant was driving while intoxicated then the reasonable suspicion standard
would still apply, if and only if his suspicion was "reasonable" ; which means
based on "reason(s)" ; not a hunch someone has ingested an intoxicant, and that
intoxicant has caused the person to not have the normal use of their mental or
physical faculties. It is clear from the facts that Officer McClain believed he
had probable cause to arrest appellant for driving while intoxicated only after he
made contact with appellant and not as he was pulling him over for the traffic
offense. The appellant was harmed by the use of the lower standard. Given the
United States Supreme Court holding in Whren v. United States, the jury should
have been charged as to this higher standard as requested by appellant and it was
error for the trial court to not instruct as such. Failure to instruct the jury as to the
proper burden of proof is fundamental error. Almanza v. State, 686 S.W.2d 157
(Tex.Crim.App. 1984). Error requires this court to reverse the trial court and acquit
the appellant. The trial court further erred by failing to include defense counsel's
requested language change in the court's charge.
Issue One: Whether the trial court erroneously denied appellant's
Motion to Suppress Unlawfully Obtained Evidence on the grounds
that the officer did not have reasonable suspicion or probable cause
to stop Appellant's vehicle.
10
Appellant contends that this court should remand this issue to the trial
court to make complete findings of fact and conclusions of law such that this
court can review the trial court's application of law to the facts as were
presented at the suppression hearing. Should the court not be so inclined, this
court could and should still find that the trial court erred in denying appellant's
Motion to Suppress as the trial court's findings were not supported by the
record, as more fully set forth below.
"A police officer can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by articulable
facts that criminal activity may be afoot, even if the officer lacks evidence
rising to the level of 'probable cause."' Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct.
1868 (1968). A warrantless automobile stop is a Fourth Amendment seizure
analogous to a temporary detention, and it must be justified by reasonable
suspicion. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138 (1984);
Hernandez v. State, 983 S.W.2d 867, 869 (Tex.App.-Austin 1998, pet. ref d). A
detaining officer must have specific articulable facts which, taken together with
rational inferences from those facts, lead him to conclude that the person
detained is, has been, or soon will be engaged in criminal activity. Woods v.
State, 956 S.W.2d 33, 35 (Tex. Crim.App.1997); Hernandez, 983 S.W.2d at
869.
11
The State did not meet its burden in proving that appellant's conduct was
suspicious enough to warrant police intrusion at the time the stop was made
and the judge made no findings of the officer's specific, articulable facts
sufficient to establish reasonable suspicion, much less probable cause. See
Appendix, Findings of Fact and Conclusions of Law. Officer McClain, the sole
witness for the State, testified at the suppression hearing that the basis for him
initiating a traffic stop of the Appellant's vehicle was for failure to maintain a
single lane of travel, a traffic offense. Upon further questioning by the State he
added that, at the time of the stop, he also "possibly" had the reasonable belief
that the appellant might be intoxicated. He based this "possible" belief on the
fact that it was 11:00 o'clock at night and the appellant was travelling away
from the bar district. His training and experience led him to the hunch that the
appellant was intoxicated. Even if the State were to argue that the basis of the
suspicion for the stop was that appellant was intoxicated, and not merely that
appellant had violated section 545.060(a) of the Transportation Code, they did
not meet their burden. To apply the officer's hunch to every motorist, then
every motorist who is traveling away from a "bar district" in the 11:00 o'clock
hour, who commits any traffic offense, must be intoxicated, is not only illogical,
but absurd.
12
The issue in this case is not whether the officer had sufficient articulable
facts to give rise to a reasonable suspicion that appellant was intoxicated, but
whether he had sufficient articulable facts to give rise to probable cause that
appellant had committed a traffic offense. This is supported by Officer
McClain's testimony that he stopped appellant for the traffic offense and not
for the "possible" belief of intoxication.
Texas Transportation Code Sec. 545.060(a) provides:
(a) An operator on a roadway divided into two or more clearly marked
lanes for traffic:
(1) shall drive as nearly as practical entirely within a single lane;
and
(2) may not move from the lane unless movement can be made
safely. Under this statute, a violation occurs only when a vehicle fails to stay
within its lane and such movement is not safe or is not made safely.
Hernandez, 983 S.W.2d at 871. In Hernandez, the officer testified that the
vehicle in question failed to maintain a single marked lane and the repeated
lane changes were unsafe because he was concerned about the driver's well-
being. Id. at 868. The State did not meet its burden in showing that the
movement of appellant's vehicle was unsafe and the trial court erred in denying
appellant's Motion to Suppress. The trial court's ruling should be overruled by
this court as it was not sufficiently supported by the credible and believable
13
evidence presented.
Issue Two: Whether the trial court erroneously charged the jury
regarding the burden of proof necessary for law enforcement to initiate
any encounter or detention of the appellant while operating a motor
vehicle, as set forth in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769
(1996).
Texas Code of Criminal Procedure 36.14 requires the trial court deliver to
the jury "a written charge distinctly setting forth the law applicable to the
case." Tex. Code. Crim. Proc. Ann. Art. 36.14. When reviewing alleged errors
in a trial court's charge, we must first determine whether error actually exists in
the charge, and, if error does exist, we must determine whether sufficient harm
resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726,
731-732 (Tex.Crim.App.1994) .
The trial court incorrectly charged the jury regarding the burden of proof
necessary for law enforcement to initiate any encounter or detention of the
appellant while operating a motor vehicle. The trial court erred by denying
appellant's request to include for the jury the definition of the applicable traffic
offense. The appellant argued and made the record pursuant to Code of
Criminal Procedure Article 36.14 that under the facts of the instant case the
proper standard in respect to the 38.23 language was probable cause as opposed
to reasonable suspicion and asked the court to change the language of the
14
charge to so reflect.
Defense counsel also argued for the trial court to include for the jury the
definition of what constitutes failing to maintain a single lane of traffic so that
the jury could answer the factual question of whether or not appellant left his
lane of traffic and, if so, whether he did so unsafely.
Officer McClain did not stop appellant because he had a reasonable
suspicion that the appellant was intoxicated. He stopped appellant because he
believed appellant to have committed a traffic offense, namely the failure to
stay within a single lane of traffic. In Whren v. United States, 517 U.S. 806,
116 S.Ct. 1769 (1996), the United States Supreme Court, declared "probable
cause" to be the constitutionally mandated level of suspicion necessary to stop an
automobile for a traffic violation. The Whren court stated:
"An automobile stop is thus subject to the constitutional imperative that it
not be "unreasonable" under the circumstances. As a general matter, the
decision to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has occurred."
Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769 (1996). The Texas
courts have followed this same language in Baldez v. State, 386 S.W.3d 324
(Tex. Crim. App. 2012) and Walter v. State, 28 S.W.3d 538
(Tex.Crim.App.2000) where they quoted straight from the Whren decision and
stated, "Generally, a police officer's decision to stop a car is reasonable when
15
the officer has probable cause to believe that a traffic violation has occurred
._Baldez v. State, 386 S.W.3d 324, 326 (Tex. Crim. App. 2012); Walter v. State,
28 S.W.3d 538, 542 (Tex.Crim.App.2000) (citing Whren v. United States, 517
U.S. 806, 810, 116 S.Ct. 1769 (1996)).
After the Whren decision, it can be said that what has emerged in
practice is a dual standard. The standard requires probable cause to stop for a
traffic violation or reasonable suspicion that the motorist has committed or is
committing a crime. If Officer McClain had stopped appellant on the belief that
appellant was driving while intoxicated then the reasonable suspicion standard
would still apply, if and only if his suspicion was "reasonable"; which means
based on "reason(s)"; not a hunch someone has ingested an intoxicant, and that
intoxicant has caused the person to not have the normal use of their mental or
physical faculties. It is clear from the facts that Officer McClain believed he
had probable cause to arrest appellant for driving while intoxicated only after he
made contact with appellant and not as he was pulling him over for the traffic
offense. The appellant was harmed by the use of the lower standard. Given the
United States Supreme Court holding in Whren v. United States, the jury should
have been charged as to this higher standard as requested by appellant and it was
error for the trial court to not instruct as such. Failure to instruct the jury as to the
proper burden of proof is fundamental error. Almanza v. State, 686 S.W.2d 157
16
(Tex.Crim.App. 1984). Error requires this court to reverse the trial court and acquit
the appellant.
Conclusion
The uncontroverted and unchallenged videotape evidence of the incident
shows that the trial court erroneously denied appellant's two pre-trial motions
to suppress evidence. Officer McClain had no probable cause to effectuate the
traffic stop on appellant for the alleged traffic offense of failure to maintain a
single lane of travel. The State's Exhibit 1 is conclusive proof that no traffic
offense occurred. Thus, pursuant to 38.23 of the Code of Criminal Procedure the
trial court erred by not suppressing the evidence obtained as a result of an
unlawful search.
Prayer
Petitioner prays that this Petition be granted;
That the evidence obtained as a result of the vehicle stop be ordered
suppressed, and the conviction based on the evidence obtained as a result of the
improper vehicle stop should be reversed and judgment of acquittal rendered, or in
the alternative that the case should be remanded to the trial court with the order that
the evidence be suppressed.
The error in the jury charge for possession cases should be corrected for all
future cases.
17
Petitioner also requests such other and further relief as is just.
Respectfully submitted,
By: /s/Dan L. Wyde
Dan L. Wyde
Texas Bar No. 22095500
10100 North Central Expressway, Suite 590
Dallas, TX 75231
Tel.: (214) 521-9100; Fax: (214) 521-9130
E-mail: wydelaw@gmail.com
Attorney for Kevin Dean Dunn, Petitioner
18
CERTIFICATE OF COMPLIANCE
I certify in accordance with Rule 9.4(i)(2)(D) of the Texas Rules of
Appellate Procedure that the number of words in this document is 3,128 as
calculated by the Word Count tool in Microsoft Word.
/S / Dan L. Wyde
Dan L. Wyde
CERTIFICATE OF SERVICE
I certify that on August 11, 2014, a true and correct copy of the above
and foregoing document was served on the District Attorney's Office, Appellate
Division, Tarrant County, by facsimile transmission to 817.884.1672.
/s/ Dan L. Wyde
Server
20
WHEREFORE Petitioner hereby PRAYS that this Honorable Court GRANT
Petitioner’s Motion to Extend Time to File Petition for Discretionary Review, and
extend the deadline for the filing of the Petition to 10 days from the date the Court
receives this pleading.
Respectfully Submitted
/S/ Dan Wyde
_________________________
WYDE & ASSOCIATES, L.L.C.
Dan L. Wyde
SBN 22095500
10100 N. Central Expressway,
Suite 590
Dallas, Texas 75231
Tel 214-521-9100
Fax 214-521-9130
wydelaw@gmail.com
PETITIONER
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00059-CR
KEVIN DEAN DUNN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1298839
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OPINION
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I. INTRODUCTION
Appellant Kevin Dean Dunn appeals his conviction for driving while
intoxicated with a blood alcohol concentration of .15 or higher, a class-A
misdemeanor. See Tex. Penal Code Ann. 49.04(a), (d) (West Supp. 2014).
Dunn pleaded not guilty, but a jury found him guilty; the trial court assessed
Dunn’s punishment at ninety days’ confinement and a $1,250.00 fine. The trial
court suspended imposition of Dunn’s sentence and placed him on community
supervision for a twenty-four month term. In his first two issues, Dunn argues
that the trial court erred by denying his motion to suppress because (1) the
arresting officer lacked reasonable suspicion or probable cause to stop his
vehicle and (2) the search warrant affidavit made by the officer in order to seize a
sample of Dunn’s blood contained false statements or statements made with a
reckless disregard for their truth. In his third issue, Dunn asserts that error exists
in the court’s charge because it contained an improper instruction stating that a
traffic stop is valid when it is premised on reasonable suspicion that the person
committed a traffic offense. We will affirm.
II. BACKGROUND
One evening in August at around 11:00 p.m., while City of Grapevine
Police Officer Daniel McClain was on patrol, Dunn pulled up next to Officer
McClain’s patrol car at a red light. Officer McClain’s dash-cam video recorded
the evening’s events and shows that when the light turned green, Dunn
accelerated ahead of Officer McClain. As Dunn drove, he drifted into Officer
McClain’s lane, requiring Officer McClain to slow down to avoid a collision. Dunn
corrected his vehicle, and Officer McClain changed lanes, so that his patrol car
was following directly behind Dunn’s vehicle. When Dunn’s vehicle drifted the
other direction and topped the broken white line, prompting a driver in the
adjacent lane to brake, Officer McClain stopped Dunn for failing to maintain a
2
single lane of travel. It was late at night, and Officer McClain thought Dunn could
be driving while intoxicated.
In an affidavit for a search warrant to obtain a sample of Dunn’s blood,
Officer McClain stated that when he began talking with Dunn, he smelled a
“strong odor of an alcoholic beverage” and observed that Dunn had bloodshot,
watery eyes and spoke “with a thick tongue.” At Officer McClain’s request, Dunn
got out of his vehicle. Officer McClain noted that Dunn swayed as he stood and
that Dunn walked unsteadily. Dunn refused to perform field sobriety tests; Officer
McClain arrested him for driving while intoxicated.
Dunn refused to consent to a blood draw; Officer McClain prepared an
affidavit for a search warrant to obtain a specimen of Dunn’s blood and obtained
a warrant. Dunn’s blood alcohol content exceeded .15.
Dunn filed two separate motions to suppress: one challenging the grounds
for the stop and arrest, the other contending that Officer McClain’s statements in
his affidavit were false or made with a reckless disregard for the truth. The trial
court conducted successive, back-to-back hearings on Dunn’s two motions to
suppress and denied them.1
1
The trial court issued findings of fact concerning Dunn’s second motion to
suppress and we previously abated this appeal at Dunn’s request to permit the
trial court to make findings of fact concerning Dunn’s first motion to suppress.
The trial court supplemented its findings and conclusions with findings regarding
the first motion to suppress, stating that Officer McClain was a credible and
reliable witness at the suppression hearing and that he possessed reasonable
suspicion to stop Dunn’s vehicle. Dunn then filed a motion requesting that this
court disregard the trial court’s supplemental findings of fact and conclusions of
3
III. THE CONSTITUTIONAL PREREQUISITE TO A TRAFFIC STOP
Dunn’s first and third issues are premised on the contention that the United
States Supreme Court in Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769
(1996), “without announcing that a substantive change had occurred,
mysteriously raised” the prerequisite for a stop based on a traffic violation from
reasonable suspicion to probable cause. Consequently, in his first issue, Dunn
argues that the trial court erroneously denied his first suppression motion
because Officer McClain did not have probable cause for the stop. Dunn’s third
issue claims that the jury charge incorrectly instructed that reasonable suspicion
of a traffic offense justifies a stop when, according to Dunn’s interpretation of
Whren, probable cause is required for such a stop.
A. Law Governing Traffic Stops
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214
S.W.3d 17, 24 (Tex. Crim. App. 2007). To suppress evidence because of an
alleged Fourth Amendment violation, the defendant bears the initial burden of
producing evidence that rebuts the presumption of proper police conduct.
Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007); see Young v.
law. Dunn complains of the trial court’s supplemental conclusion that Officer
McClain possessed reasonable suspicion to stop him. Because we review this
conclusion and the facts upon which it is based in connection with Dunn’s first
two issues, and because Dunn requested the supplemental findings of fact and
conclusions of law, we deny his motion that we disregard them.
4
State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093
(2009). A defendant satisfies this burden by establishing that a search or seizure
occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant
has made this showing, the burden of proof shifts to the State, which is then
required to establish that the search or seizure was conducted pursuant to a
warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902
(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
2005).
A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880
(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An
officer conducts a lawful temporary detention when he or she has reasonable
suspicion to believe that an individual is violating the law. Crain v. State, 315
S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. Reasonable
suspicion exists when, based on the totality of the circumstances, the officer has
specific, articulable facts that when combined with rational inferences from those
facts, would lead the officer to reasonably conclude that a particular person is,
has been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492.
This is an objective standard that disregards any subjective intent of the officer
making the stop and looks solely to whether an objective basis for the stop
exists. Id.
5
Dunn’s argument that Whren raised the prerequisite for a traffic stop to
probable cause is the same argument that was advanced by the defendant in
United States v. Lopez-Soto, and we agree with the Ninth Circuit’s response:
Lopez-Soto argues that the Supreme Court’s decision in Whren . . .
stands for the proposition that an officer must have probable cause
to make a traffic stop. He relies on the Court’s observation that, “[a]s
a general matter, the decision to stop an automobile is reasonable
where the police have probable cause to believe that a traffic
violation has occurred.”
Prior to Whren, it was settled law that reasonable suspicion is
enough to support an investigative traffic stop.
....
We do not believe that the Court in Whren intended to change
this settled rule. The passage on which Lopez-Soto relies tells us
only that probable cause is sufficient to support a traffic stop, not
that it is necessary. If the Supreme Court announced in Whren a
new rule of law, as Lopez-Soto contends, we would expect it to have
acknowledged the change and explained its reasoning. Such an
explanation is notably absent from the Whren opinion. Instead, the
facts of Whren involved speeding and failure to signal, and the
parties agreed that, from these facts, the police had probable cause
to make the disputed stop. This threshold agreement allowed the
Whren Court to address a different issue, namely the constitutional
relevance of the officers’ subjective intent in making the stop, to
which the Court gave sustained attention. Given that probable
cause was clearly satisfied on the facts before the Court in Whren
and that the Court directed its focus elsewhere, we do not believe
that the casual use of the phrase “probable cause” was intended to
set a new standard.
. . . [T]he Fourth Amendment requires only reasonable
suspicion in the context of investigative traffic stops.
205 F.3d 1101, 1104–05 (9th Cir. 2000) (citations omitted).
6
The Ninth Circuit’s treatment of the argument accords with Texas law. See
Ford, 158 S.W.3d at 492 (“An officer conducts a lawful temporary detention when
he has reasonable suspicion to believe that an individual is violating the law.”);
see also, e.g., Delafuente v. State, 414 S.W.3d 173, 179 (Tex. Crim. App. 2013)
(“Taken together, these facts and inferences are sufficient to lead a reasonable
officer to conclude that appellant was engaged in criminal activity, namely a
violation of [Texas Transportation Code] Section 545.363(a).”); Abney v. State,
394 S.W.3d 542, 548 (Tex. Crim. App. 2013) (“In this case, the State was
required to show that the officer had reasonable suspicion that Appellant
committed the traffic violation of driving in the left lane without passing when a
sign (a traffic control device) prohibited such action.”).
Because reasonable suspicion is the threshold for a traffic stop, the trial
court’s jury charge was not erroneous, and we overrule Dunn’s third issue. See
Sanchez v. State, 418 S.W.3d 302, 308 (Tex. App.—Fort Worth 2013, pet. ref’d)
(citing Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)) (“[I]f [jury-
charge] error did not occur, our analysis ends.”). We now turn to whether the
facts support the trial court’s finding that Officer McClain had reasonable
suspicion to stop Dunn for failing to maintain a single lane of travel.
B. Motion to Suppress
We review a trial court’s ruling on the motion to suppress evidence under a
bifurcated standard of review. Amador, 221 S.W.3d at 673; Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court’s decision,
7
we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539,
543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort
Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the
credibility of the witnesses and the weight to be given their testimony. Wiede,
214 S.W.3d at 24–25; State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006). Therefore, we give almost total deference to the trial court’s rulings on
(1) questions of historical fact, even if the trial court’s determination of those facts
was not based on an evaluation of credibility and demeanor, and (2) application-
of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the credibility
and demeanor of the witnesses, we review the trial court’s rulings on those
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d
604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, as here,
we determine whether the evidence, when viewed in the light most favorable to
the trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.
8
We then review the trial court’s legal ruling de novo unless its explicit fact
findings that are supported by the record are also dispositive of the legal ruling.
Id. at 818. We must uphold the trial court’s ruling if it is supported by the record
and correct under any theory of law applicable to the case even if the trial court
gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740
(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim.
App. 2003), cert. denied, 541 U.S. 974 (2004).
The Transportation Code provides, “An operator on a roadway divided into
two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical
entirely within a single lane and (2) may not move from the lane unless that
movement can be made safely.” Tex. Transp. Code Ann. § 545.060(a)(1)(2)
(West 2011). Officer McClain saw Dunn drift from his lane twice, which can be
seen on the video. And contrary to Dunn’s assertion on appeal, the drifting was
unsafe; Officer McClain as well as another driver had to slow down to avoid
hitting Dunn.2 Viewing the video and Officer McClain’s testimony in the light most
2
Dunn asserts that Officer McClain’s self-described “evasive maneuver”
involved only taking his foot off the accelerator and did not involve braking or
making a quick movement. Regardless, deceleration, whether by braking or
discontinuing acceleration, in response to a weaving driver, is evasive, and
unsafe weaving does not require that other drivers brake or make quick, furtive
movements. See Taylor v. Sate, 916 S.W.2d 680, 681–82 (Tex. App.—Waco
1996, pet. ref’d) (considering swerving into another lane and almost hitting an
officers’ vehicle therein to be unsafe driving); see also Yeakley v. State, No. 03-
09-00584-CR, 2011 WL 677391, at *4 (Tex. App.—Austin Feb. 25, 2011, pet.
dism’d) (holding that surrounding drivers’ use of caution to avoid the appellant’s
weaving vehicle did not render the weaving safe).
9
favorable to the trial court’s ruling, see Wiede, 214 S.W.3d at 24; Kelly, 204
S.W.3d at 818–19, Montanez, 195 S.W.3d at 109, we conclude that the record
supports the trial court’s ruling. We overrule Dunn’s first issue.
IV. VERACITY OF AFFIDAVIT STATEMENTS
Dunn’s second issue is premised on Franks v. Delaware, in which the
United States Supreme Court held,
[W]here the defendant makes a substantial preliminary showing that
a false statement knowingly or intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant
affidavit, and if the alleged false statement is necessary to the
finding of probable cause, the Fourth Amendment requires that a
hearing be held at the defendant’s request.
438 U.S. 154, 155–56, 98 S. Ct. 2674, 2675 (1978).
In conducting a Franks suppression review, we use the same bifurcated
review outlined in the previous section, giving almost total deference to the trial
court’s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on an evaluation of credibility and demeanor while reviewing
de novo application-of-law-to-fact questions that do not turn on credibility and
demeanor. Davis v. State, 144 S.W.3d 192, 201 (Tex. App.—Fort Worth 2004,
pet. ref’d) (op. on reh’g). An affidavit supporting a search warrant begins with the
presumption of validity. Franks, 438 U.S. at 171, 98 S. Ct. at 2684; Cates v.
State, 120 S.W.3d 352, 355 (Tex. Crim. App. 2003). It is the defendant’s burden
to rebut that presumption by proving by a preponderance of the evidence that the
affiant made false statement deliberately or with a reckless disregard for the
10
truth. Franks, 438 U.S. at 156, 171, 98 S. Ct. at 2676, 2684; Davis, 144 S.W.3d
at 201. The defendant must also show that absent the false information, the
remaining content is insufficient for probable cause. Franks, 438 U.S. at 156,
171–72, 98 S. Ct. at 2676, 2684–85; Davis, 144 S.W.3d at 201; see Cates, 120
S.W.3d at 356.
In its findings of fact and conclusions of law, the trial court stated that the
affidavit statements were all borne out by the testimony at the suppression
hearing and that there was no proof that Officer McClain deliberately made false
statements or made statements with a reckless disregard for the truth. Dunn
disagrees, challenging several of the affidavit statements and noted
observations, including the statement that Dunn drifted into Officer McClain’s
lane and almost collided with his patrol vehicle, that appellant had a strong odor
of alcohol, that Dunn “spoke with a thick tongue[,]” that Dunn’s clothing was
disorderly, that Dunn swayed and staggered, and that Dunn had an
uncooperative attitude. Having already determined that the video supports
Officer McClain’s description of Dunn drifting into his lane in an unsafe manner,
this statement in the affidavit is not false. See Franks, 438 U.S. at 156, 171–72,
98 S. Ct. at 2676, 2684–85 (instructing that information that is proven to be false
and to have been made intentionally, knowingly, or with a reckless disregard for
the truth is to be omitted and the rest of the affidavit reviewed for probable
cause); Davis, 144 S.W.3d at 201 (same); see Cates, 120 S.W.3d at 356 (same).
11
Officer McClain’s observations in his affidavit that Dunn’s eyes were bloodshot,
red, and watery were not challenged before the trial court or on appeal.
The only evidence that Dunn claims establishes the falsity of Officer
McClain’s affidavit and testimony is the video of the stop. We note, however, that
the video sheds no light on Officer McClain’s assertion that Dunn smelled
strongly of alcohol. Moreover, although slight swaying is arguably visible on the
video, in general the subtleties of swaying, slight staggering, and even speaking
“thick-tongued” are not always amenable to being captured by a video camera
installed in an officer’s patrol vehicle parked several feet away, especially when
the stop occurs when it is dark outside as in this case, or by the audio equipment
worn by the officer. See Tucker v. State, 369 S.W.3d 179, 187 n.1 (Tex. Crim.
App. 2012) (Womack, J., concurring) (noting that the evidentiary value of video
evidence often depends on other factors because “[t]he clarity of the video is
often dependent on the lighting, angle or focus of the camera, or the camera’s
distance from the object recorded” and “[t]he audio may be inaudible due to the
tone of the speaker, static, or other background noise”). Viewing the video in the
light most favorable to the trial court’s ruling, it supports the court’s implicit finding
that the officer’s affidavit statements were accurate. See id. at 185 (“The court of
appeals should view the video in the light most favorable to the trial court’s ruling
and assume that the trial court made implicit findings that support the denial of
Appellant’s motion to suppress.”); Montanez, 195 S.W.3d at 109.
12
Even assuming that the video evidence did not corroborate Officer
McClain’s affidavit and testimony as implicitly found by the trial court, it did not
disprove his affidavit or testimony or expose a deliberate falsehood or reckless
disregard for the truth. Dunn’s belief that the video did not support Officer
McClain’s affidavit statements—which Dunn characterizes on appeal as Officer
McClain’s “purely subjective” opinions—is the type of suspicion better channeled
into a robust cross-examination rather than serving as a foundation for a Franks
hearing. See Franks, 438 U.S. at 171, 98 S. Ct. at 2684 (“[T]he challenger’s
attack must be more than conclusory and must be supported by more than a
mere desire to cross-examine.”). In short, without more evidence, Dunn failed to
rebut the affidavit’s presumption of validity with a preponderance of the evidence
showing Officer McClain made false statements deliberately or with a reckless
disregard for the truth. Franks, 438 U.S. at 156, 171, 98 S. Ct. at 2676, 2684;
Cates, 120 S.W.3d at 355; Davis, 144 S.W.3d at 201. And we must respect the
trial court’s finding that Officer McClain was credible at the hearing, see Davis,
144 S.W.3d at 201, and implicit finding that the video supported Officer McClain’s
affidavit statements, see Tucker, 369 S.W.3d at 185. Accordingly, we overrule
Dunn’s second issue.
13
V. CONCLUSION
Having overruled Dunn’s three issues, we affirm the trial court’s judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
PUBLISH
DELIVERED: May 21, 2015
14
FILE COPY
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00059-CR
KEVIN DEAN DUNN APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1298839
------------
ORDER
------------
We have considered “Appellant’s Motion for En Banc Reconsideration and
Supporting Brief.”
It is the opinion of the court that the motion for en banc reconsideration
should be and is hereby denied and that the opinion and judgment of May 21,
2015, stand unchanged.
The clerk of this court is directed to transmit a copy of this order to the
attorneys of record.n
FILE COPY
SIGNED July 16, 2015.
/s/ Sue Walker
SUE WALKER
JUSTICE
EN BANC
2
Dunn, Kevin Dean
Combined Opinion