                                  MEMORANDUM OPINION
                                          No. 04-11-00133-CR

                                         The STATE of Texas,
                                              Appellant

                                                   v.

                                        Juan F. PRUNEDA, Jr.,
                                                Appellee

                          From the County Court at Law, Kerr County, Texas
                                    Trial Court No. CR-10-0020
                            Honorable Spencer W. Brown, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 21, 2011

AFFIRMED

           The State appeals from an order granting the defendant’s motion to suppress in this DWI-

1st offense prosecution. We affirm the trial court’s order.

                                                ANALYSIS

           Juan Pruneda, Jr. was stopped for an alleged traffic violation in his Dodge Ram 1500

pickup, and arrested for DWI. Pruneda filed a motion to suppress alleging the officer lacked

reasonable suspicion to stop his vehicle. The evidence at the suppression hearing consisted of
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Kerrville Police Officer Kristy Price’s testimony, plus a DVD video from her patrol car, a map of

the area, and her certification of training on standard field sobriety testing. Officer Price testified

that she was parked across the street from Mulligan’s Pub at 2:00 a.m. closing time on December

19, 2009, monitoring the crowd in the parking lot. Price stated she observed a silver car back out

of the parking lot on to Water Street and begin to proceed westbound when a green Dodge Ram

1500 also backed out on to Water Street in front of the silver car, “cutting-off” the silver car and

causing it to “stop to avoid a collision.” Officer Price said the driver of the Dodge Ram

committed the traffic offense of “failure to yield right of way;” however, she did not stop the

vehicle for this offense. Instead, Officer Price followed both vehicles in her patrol car as they

traveled westbound on Water Street; the silver car was between Price and the Dodge Ram. Price

stated that she noticed an object go “flying through the air,” which appeared to be a silver can

with blue writing; she saw it hit the roadway and it appeared to contain an alcoholic beverage

which she assumed was beer. Price testified she suspected the can was thrown from one of the

vehicles, but she could not tell which vehicle it came from; tossing of the can would constitute

the offense of littering, but she did not stop either vehicle for littering.

        As she continued to follow the two vehicles, Price was traveling faster than the posted

speed limit of 30 mph in order to catch up to the two vehicles and the Dodge Ram was increasing

the distance between it and the silver car; she did not confirm the speed with radar and did not

know the exact rate of speed of the Dodge Ram. Although Price explained she visually observed

that the Dodge Ram was speeding, she did not stop it for speeding. At the intersection of Water

and Washington Streets where the road narrows down to one lane and curves, Price stated she

observed Pruneda activate his brakes twice in a “quick jerking, braking motion,” and then the

Dodge Ram appeared to strike the curb, causing the Dodge Ram to cross over into the oncoming



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lane of traffic—Price stated all four tires crossed over the double yellow line and the Dodge Ram

traveled in the oncoming lane for several feet before correcting back into the proper lane; this

would constitute the traffic offense of failure to maintain the proper lane. Price then passed the

silver car in order to catch up to the Dodge Ram. At the next intersection, controlled by a

flashing yellow light signaling a “yield,” the Dodge Ram stopped for approximately 26 seconds,

which Price characterized as a “prolonged period of time,” thereby committing the offense of

“hindering traffic.” At that point, Price activated her overhead lights and initiated a traffic stop

of the Dodge Ram. Price testified the stop was based on “a totality of the entire driving” by

Pruneda.

       At the end of Price’s direct testimony, the DVD video from her patrol car showing the

sequence of events was admitted and played in court. On cross-examination, Price stated that

everything she testified that she observed is shown on the video. However, she then conceded

that the thrown can does not appear on the video. Price also agreed the road curves where B

Street connects with Water Street and the Dodge Ram disappears from view when it goes around

the curve; Price explained the truck sped up around the curve. However, with regard to whether

the Dodge Ram was speeding, Price stated she has a radar unit in her vehicle, but did not use it;

further, she did not “pace” the Dodge Ram to determine its speed and did not know how fast it

was traveling. Further, Price stated the video shows the Dodge Ram striking the curb and

crossing a double yellow line at the Water/Washington Street intersection; however, she

conceded it is “hard to see” on the video, and agreed the double yellow line does not begin until

after Washington crosses Water Street. In addition, Price stated she had not yet passed the silver

car, and it was still in front of her vehicle at the time she saw the Dodge Ram hit the curb and

veer into the opposite lane. Finally, Price clarified that her patrol vehicle pulled up right behind



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the Dodge Ram after it had been stopped for “several seconds” at the flashing yellow light, and

she waited behind it for approximately 26 seconds before she initiated her flashing lights.

       At the conclusion of the hearing, the trial court granted Pruneda’s motion to suppress.

Thereafter, the court made the following written findings of fact in support of its ruling:

       ***
       4. Officer Price testified that everything she testified to in Court was captured on
       her video recording of the incident.

       5. There was no collision when the Defendant backed out of the Pub parking lot
       and the Officer did not pull over the Defendant’s vehicle for the way he backed
       and pulled out.

       6. The video does not show the Defendant failing to yield right of way leaving
       the Pub parking lot.

       7. The Officer testified a can was thrown from either the Defendant’s passenger
       window or the passenger window of a vehicle which was behind the Defendant’s
       vehicle, but the Officer could not tell which vehicle the can came from. The
       video does not reflect a can coming from either vehicle or that a can landed in the
       roadway.

       8. The Officer lost sight of the Defendant’s vehicle as it went around the curve at
       Water and B Street.

       9. The Officer did not clock the Defendant’s vehicle on the radar as speeding.
       The Officer did not pace the Defendant’s vehicle to determine if it was speeding.
       The Officer did not know how fast the Defendant was driving.

       10. The video does not reflect the Defendant’s vehicle ever hitting a curb on
       Water Street at Washington Street.

       11. The Officer had another vehicle, a silver car, between her vehicle and the
       Defendant’s vehicle during most of the pursuit.

       12. The video does not reflect the Defendant’s vehicle ever left his lane of traffic
       and crossed any double yellow lane dividers.

       13. The Defendant’s vehicle yielded at the yellow caution light at Water and Earl
       Garrett Street.

       14. The video did not depict the Defendant driving his vehicle in a reckless
       manner.

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       15. Officer Price’s video, State’s Exhibit #3, is the most credible evidence in this
       case.

       In its conclusions of law, the court noted that, as a matter of law, it is the sole judge of the

credibility and weight of the evidence, and is free to believe or disbelieve all or any part of a

witness’s testimony. Based on its findings of fact, the trial court concluded that Officer Price

lacked reasonable suspicion to stop Pruneda’s vehicle.

       On appeal, the State asserts the trial court’s fact findings are not supported by the record,

and that the totality of the circumstances gave rise to reasonable suspicion justifying the traffic

stop. In reviewing the trial court’s ruling on a motion to suppress, we afford almost total

deference to the court’s determination of historical facts, especially when it is based on

assessment of a witness’s credibility, as long as the fact findings are supported by the record.

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); Amador v. State, 221 S.W.3d

666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We apply the same deferential standard when reviewing the court’s ruling on “application of law

to fact questions” or “mixed questions of law and fact” if resolution of those issues turns on an

evaluation of credibility, but review de novo the court’s application of the law to the facts, and

resolution of mixed questions of law and fact, that do not depend upon credibility assessments.

Amador, 221 S.W.3d at 673. When, as here, the trial court makes express findings of fact, we

view the evidence in the light most favorable to the court’s ruling and determine whether the

evidence supports the fact findings. Valtierra, 310 S.W.3d at 447.

       We conclude the trial court’s fact findings are supported by the record, and that the

totality of those facts do not show that Price had reasonable suspicion to stop Pruneda. Based on

its findings, it is apparent that the trial court, acting as the sole judge of the credibility of the



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witnesses and the weight of the evidence, exercised its discretion to resolve conflicts in the

evidence and to disbelieve parts of Officer Price’s testimony that conflicted with the video

evidence from her patrol car. See id. Price testified that all of the traffic violations she stated she

observed during the pursuit appeared on the video, but the video does not support her claim—it

does not show a near collision and/or failure to yield right-of-way by Pruneda; it does not show a

can thrown from a vehicle; it does not show Pruneda’s Dodge Ram speeding; it does not show

Pruneda’s truck hitting a curb and all four tires crossing over a double yellow line for several

seconds. Further, the 26-second yield that is shown on the video does not give rise to a

reasonable suspicion of criminal activity, especially in view of the fact that Price’s marked patrol

vehicle was behind Pruneda’s truck for most of the 26-second period. In addition, Price herself

admitted she did not use radar or pacing to determine whether Pruneda was speeding, there was

another vehicle in between her patrol car and Pruneda for most of the pursuit, and she lost sight

of Pruneda’s vehicle at one point. The totality of these circumstances does not amount to

reasonable suspicion to stop Pruneda’s vehicle. See Terry v. Ohio, 392 U.S. 1, 21 (1968);

Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).

       In its reply brief, the State argues that “clear, video evidence” is not required to support

an investigatory stop, and complains it is being implicitly held to a higher standard than the

minimal threshold of “reasonable suspicion.” See Carmouche, 10 S.W.3d at 328. The State

misconstrues the import of the trial court’s findings that the video is the best, “most credible,”

evidence in this case, and does not show the alleged traffic violations Price testified formed the

basis for her reasonable suspicion to stop Pruneda’s vehicle. Video evidence of a traffic stop is

obviously not required in every case, but in a case where there is video evidence which

contradicts the officer’s live testimony about the basis for the stop, it may certainly be considered



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by the trial court. The officer’s testimony cannot be viewed in isolation—the trial court was free

to disbelieve all or part of the officer’s testimony for any reason, including its viewing of the

video. Valtierra, 310 S.W.3d at 447.

       Based on the foregoing reasons, we overrule the State’s issues on appeal and affirm the

trial court’s order granting Pruneda’s motion to suppress.



                                                     Phylis J. Speedlin, Justice

DO NOT PUBLISH




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