           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-0066-13



                          JOSEPH DELAFUENTE, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE FOURTEENTH COURT OF APPEALS
                           WALLER COUNTY



       A LCALA, J., filed a dissenting opinion.

                                DISSENTING OPINION

       This case requires this Court to once again decide what to do when the losing party

on a motion to suppress has requested explicit findings of fact and conclusions of law, but

the findings made by the trial court are wholly inadequate. The majority opinion decides that

a remand for supplemental findings is unnecessary, but I disagree. I conclude that the trial

court, in essence, made only one fact finding and that it is an inadequate basis upon which
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to determine whether the officer had reasonable suspicion to detain the sedan occupied by

Joseph Delafuente, appellant. I would sustain the second ground presented in the State’s

petition for discretionary review and reverse and remand the case to the court of appeals with

instructions to abate to the trial court for additional findings. I, therefore, respectfully

dissent.

                       I. Existing Findings of Fact are Inadequate

       To call this record sparse would be a gross understatement. No witness testified at the

motion to suppress hearing. The entire record consists of a two-page offense report that was

admitted into evidence without objection. The offense report describes these facts:

       1. The officer was on patrol on June 24, 2009, at 9:12 a.m., on Interstate 10;

       2. The officer observed “a traffic congestion” in the inside westbound lane
       near the Igloo Road Overpass;

       3. Traffic volume was “moderate”;

       4. The officer “inspected further” and observed a sedan moving at 52 miles per
       hour in a zone with a 65 mile-per-hour maximum speed limit;

       5. The sedan was “Impeding Traffic”;

       6. To effect a traffic stop, the officer was “required [to] utiliz[e] the rear emergency
       lights on the patrol vehicle to allow a safe lane change of [the] patrol vehicle, from
       the center to the inside lane”; and

       7. The sedan immediately yielded to the inside shoulder.

       In light of the sparse evidentiary record, it is no surprise that the trial court’s findings

of fact and conclusions of law are also minimal. The trial court made only one conclusion
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of law: “The officer had probable cause for the stop because the defendant was driving slow

and impeding traffic.” On its face, this conclusion is erroneous because the defendant was

not even driving the vehicle at the time of the stop; rather, he was in the passenger seat.

       Aside from the single conclusion of law to which this Court owes no deference,1 the

trial court made two findings of fact that essentially amount to a single finding of fact. In

what is characterized as its first fact finding, the trial court determined that “[t]he attorney

agreed on [the] record that the offense report be admitted as evidence. Both [the] State and

Defense waived their right to present oral testimony or cross-examine the officer.” This

statement does not describe the events that took place on the morning of the stop, but instead

is a description of what happened at the motion-to-suppress hearing and the means by which

the offense report became the sole evidence in the record. After examining the content of

this first finding, it is clear that it is immaterial to the matters at issue in this appeal

concerning the validity of the traffic stop.

       In its second finding of fact, the trial court determined that appellant’s vehicle was

impeding traffic. This finding states, “In the offense report the officer states that defendant

was impeding traffic. Since there was no contraverting [sic] testimony presented and no

cross-examination, the Court accepted that statement as fact. Therefore[,] the Court finds



1
       See State v. Mazuca, 375 S.W.3d 294, 307 n. 68 (Tex. Crim. App. 2012) (stating that legal
conclusions are “‘subject to de novo review, not deference’”) (quoting State v. Sheppard, 271
S.W.3d 281, 291 (Tex. Crim. App. 2008)); Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim. App.
2010) (“Although we give almost total deference to the trial court’s determination of historical facts,
we conduct a de novo review of the trial court’s application of the law to those facts.”).
                                                                                      Delafuente - 4

that Defendant’s vehicle was impeding traffic.” The majority opinion recognizes, and I

agree, that the officer’s bare assertion that appellant’s car was “impeding traffic” is a legal

conclusion, not a factual finding, because it describes a particular violation of the law. The

trial court’s adoption of that legal conclusion as a finding of fact does not transform it into

something it is not; it remains a conclusion of law. See State v. Sheppard, 271 S.W.3d 281,

291-92 (Tex. Crim. App. 2008) (taking note of the problem of “mixing the apples of explicit

factual findings with the oranges of conclusions of law,” and stating that, regardless of how

they are labeled, factual findings consist of “who did what, when, where, how, or why” and

“do not include legal rulings on ‘reasonable suspicion’ or ‘probable cause’; those are legal

conclusions subject to de novo review, not deference”). In characterizing this second finding,

the majority opinion states, “In this case, the trial court issued explicit findings of fact

declaring credible the officer’s statement that the vehicle was ‘impeding traffic.’” Although

I disagree that this is an explicit statement about the officer’s credibility, I agree that the trial

court implicitly found that the officer was credible in stating his subjective belief that the

vehicle was impeding traffic. But an officer’s honest belief that a traffic violation is being

committed does not equate to reasonable suspicion, which is an objective standard that

depends on the existence of specific, articulable facts. See Ford v. State, 158 S.W.3d 488,

492-93 (Tex. Crim. App. 2005) (noting that reasonable suspicion determination is based on

“specific, articulable facts”; standard is an objective one and “disregards any subjective

intent” of officer making stop). A trial court that adopts an officer’s legal conclusion as its
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sole relevant fact finding does not provide an appellate court an adequate basis upon which

to review a suppression ruling.

       Importantly, the trial court’s fact findings utterly fail to address the key circumstances

that an appellate court would need to consider to make a reasonable-suspicion determination,

such as whether the driver of the sedan was driving more slowly than other traffic, whether

the sedan affected the normal and reasonable movement of traffic, and whether reduced

speed was somehow necessary for the safe operation of the vehicle or to comply with the

law. See T EX. T RANSP. C ODE § 545.363(a). Section 545.363(a) of the Transportation Code

states, “An operator may not drive so slowly as to impede the normal and reasonable

movement of traffic, except when reduced speed is necessary for safe operation or in

compliance with law.” Id. Several Texas courts of appeals have held that driving more

slowly than the posted speed limit, without more, is inadequate to establish that the driver is

impeding traffic. See Tex. Dep’t of Pub. Safety v. Gonzales, 276 S.W.3d 88, 93 (Tex.

App.—San Antonio 2008, no pet.) (driving 45 miles per hour in a 65 mile-per-hour zone did

not constitute impeding traffic in absence of evidence describing overall amount of traffic

on highway); Richardson v. State, 39 S.W.3d 634, 639 (Tex. App.—Amarillo 2000, no pet.)

(driving 25 miles per hour below speed limit did not constitute impeding traffic because

“there was little or no traffic on the road” and other vehicles had no difficulty passing slower

one); Davy v. State, 67 S.W.3d 382, 393 (Tex. App.—Waco 2001, no pet.) (traffic not

impeded because no other vehicles were present on the road at time of stop). Because the
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trial court made only one finding that the vehicle “impeded traffic” without even explaining

what that term may have meant in the context of this case, I disagree with the majority

opinion’s characterization of the trial court’s fact findings as including all the facts needed

to decide this case.

    II. This Court’s Precedent Requires Reversal and Abatement for Additional Fact-
                               Findings by the Trial Court

         Although the trial court never made any finding that all of the facts in the offense

report were true, it appears that the majority opinion accepts the entire report as true because

the evidence was undisputed at trial. But this Court has never equated undisputed testimony

with credible testimony. State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing

State v. Ross, 32 S.W.3d 853, 857 (Tex. Crim. App. 2000)). Even though evidence is

undisputed, a trial court retains the authority to disbelieve it. See id. (citing Ross, 32 S.W.3d

at 857). Furthermore, the losing party on a motion to suppress is, upon request, entitled to

“essential findings” of fact that are “adequate to provide an appellate court with a basis upon

which to review the trial court’s application of the law to the facts.” Elias, 339 S.W.3d at

674 (quoting State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006)).2 As we have

held in several recent decisions, an appellate court must abate to the trial court for additional


2
        In the absence of any findings of fact, either because none were requested or none were
spontaneously made by the trial court, an appellate court must presume that the trial court implicitly
resolved all issues of historical fact and witness credibility in the light most favorable to its ultimate
ruling. State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing State v. Ross, 32 S.W.3d
853, 857 (Tex. Crim. App. 2000)). Because fact findings were properly requested by the losing party
in this case, this presumption is inapplicable. See State v. Mendoza, 365 S.W.3d 666, 673 (Tex.
Crim. App. 2012).
                                                                                         Delafuente - 7

findings of fact when a party has requested findings of fact and the findings that are made

by a trial court are so incomplete that an appellate court is unable to make a legal

determination. See State v. Saenz, No. PD-0043-13, ___ S.W.3d ___, 2013 WL 5729973,

at *7 (Tex. Crim. App. Oct. 23, 2013) (reversing and remanding for additional fact findings

because dispositive historical facts were absent from trial court’s findings); Elias, 339

S.W.3d at 674 (same); State v. Mendoza, 365 S.W.3d 666, 673 (Tex. Crim. App. 2012)

(reversing and remanding for additional fact findings because dispositive credibility

determination was absent from trial court’s findings); Cullen, 195 S.W.3d at 699 (reversing

and remanding for fact findings because trial court completely declined a proper request to

issue them).3 “We will not presume factual findings that may be dispositive in a case when

a trial court’s findings are an inadequate basis upon which to make a legal conclusion and

when those findings have been properly requested by a losing party.” Saenz, ___ S.W.3d at

___, 2013 WL 5729973, at *5; see Elias, 339 S.W.3d at 674; Mendoza, 365 S.W.3d at 673;

Cullen, 195 S.W.3d at 699.


3
         As we noted recently in Saenz v. State, however, “[t]he trial court is, of course, limited to
making findings based on the facts that currently appear in the record.” No. PD-0043-13,
___S.W.3d ___, 2013 WL 5729973, at *7 n. 6 (Tex. Crim. App. Oct. 23, 2013). Given the limited
nature of the record in this case, I acknowledge that the trial court may find it difficult to remedy the
inadequacy of its original findings. But such a task is not impossible, given the state of the record.
The trial court’s supplemental findings could, for example, expressly state whether it found credible
the officer’s statements in the offense report; whether there was a traffic congestion and whether that
congestion was caused by appellant’s vehicle; whether that congestion was different from ordinary
traffic flow at that location; whether traffic volume was “moderate” and what that term might have
meant in the context of this case; whether the speed at which appellant’s vehicle was traveling was
one that would affect traffic conditions; and whether appellant’s vehicle was traveling in the lane
designated for faster-moving vehicles, as the majority opinion suggests.
                                                                                   Delafuente - 8

       As in the cases cited above, a similar inadequacy exists in this trial court’s findings

regarding the historical facts to be considered when making the ultimate legal determination

whether the officer had reasonable suspicion to detain the sedan for impeding traffic. To

imply all facts in favor of the trial court’s ruling, as the majority opinion in essence purports

to do, conflicts with our earlier statements indicating that an appellate court should avoid

making broad presumptions and should instead remand for supplemental findings when the

trial court fails to enter essential and potentially dispositive findings. See Elias, 339 S.W.3d

at 675-76. After Cullen and Elias, such broad presumptions in favor of the trial court’s

ruling are appropriate only when there are no findings of fact and none have been properly

requested. See Ross, 32 S.W.3d at 857. Such is clearly not the case here.

       The trial court’s sole fact finding surrounding the traffic stop used the same

conclusory phrase “impeding traffic” that the officer used in his offense report. The majority

opinion surmises that what the officer really intended to say was that there was “a line of

vehicles stacked up behind one slowly moving car.” But that is pure speculation. Neither

the trial court’s fact findings nor the offense report explains what the officer actually meant

by the term “impeding traffic.” The officer could have been using the term in its technical

legal meaning as the traffic offense, in a factual description as this Court’s majority opinion

suggests, or something else. We simply do not know, and I disagree that this Court should

supplant the trial court as fact finder by ascribing meanings to terms that are unclear.
                                                                                    Delafuente - 9

       I also disagree that this Court should become the fact finder by adopting the facts

described in the offense report when those facts have not expressly been adopted by the trial

court. The majority opinion states, “It is true that, in this case, the officer used a legally

meaningful phrase to describe what he saw, but unlike Ford,4 he did more than provide an

unsubstantiated subjective assertion—he provided other facts to support that statement.” The

opinion goes on to reason that the “trial court could not have credited the report’s conclusion

[that the vehicle was impeding traffic] without crediting the rest of its factual contents.” This

assessment does not alter the fact that the trial court failed to make any findings as to the

veracity of the factual statements contained in the offense report. In fact, the trial court stated

that its adoption of the officer’s conclusion that the vehicle was impeding traffic was based

on the uncontroverted nature of the evidence. But, as noted above, uncontroverted is

different from credible, and even if the trial court believed the officer to be credible in his

subjective belief that appellant’s sedan was impeding traffic in violation of the law, the fact

findings do not include articulable facts from which this Court could assess whether the

officer had reasonable suspicion to make a traffic stop for that offense. See Ford, 158

S.W.3d at 492-93.

       I conclude that the trial court’s single relevant fact finding that the sedan was

impeding traffic is based solely on an unsubstantiated, subjective assertion that is inadequate

to establish that the State met its burden to prove that the stop was reasonably justified. See



4
       Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).
                                                                                 Delafuente - 10

Ford, 158 S.W.3d at 493 (where arrest is shown to be warrantless, burden shifts to State to

prove reasonableness of seizure, and specific, articulable facts must go beyond “mere

opinions” or “a conclusory statement that [appellant] was violating a traffic law”); Bishop

v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002) (State has burden of proof in

warrantless seizure). I disagree with the majority opinion’s holding that there is no “need to

remand to the trial court for additional findings under Ford or Mendoza 5 because the trial

court unambiguously found the offense report credible.” As explained above, this is not an

accurate representation of the trial court’s fact findings, which address only the discrete legal

conclusion that the vehicle was “impeding traffic,” and which fail to make any assessment

of the credibility or significance of the other statements in the offense report. I would hold

that the court of appeals erred by failing to abate the case for complete findings of fact. I

would sustain the State’s second ground and reverse the judgment of the court of appeals.

Because the majority opinion reinstates the trial court’s suppression ruling instead of

remanding to the court of appeals with instructions to abate for supplemental findings, I

respectfully dissent.

Filed: November 27, 2013
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5
       Ford, 158 S.W.3d at 493; Mendoza, 365 S.W.3d at 673.
